Brazel v State of Victoria

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S EAPCI 2024 0059

GREGORY JOHN BRAZEL	Applicant
v
STATE OF VICTORIA	Respondent

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JUDGE:	KAYE JA
WHERE HELD:	Melbourne
DATE OF HEARING:	17 December 2024
DATE OF JUDGMENT:	20 December 2024
MEDIUM NEUTRAL CITATION:	[2024] VSCA 327
JUDGMENT APPEALED FROM:	Brazel v State of Victoria [2024] VCC 681 (Judge Ginnane)

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APPEAL – Application for leave to appeal – Decision of trial judge to approve settlement of proceeding pursuant to s 104U of the Corrections Act 1986 – Applicant brought proceeding against respondent claiming damages for personal injury – Parties entered into deed of settlement following mediation – Applicant claimed deed not accurate recording of terms of settlement – Applicant unrepresented litigant – Judge approved settlement of proceeding – Judge found applicant received legal advice before executing deed – Whether finding unreasonable – Where judge presided over and gave ruling in earlier proceeding – Whether judge ought to have recused himself – Whether judge affected by actual or apprehended bias – No reasonable prospects of success – Application for leave to appeal refused.

Supreme Court Act 1986, ss 14A, 14C; Corrections Act 1986, s 104U, referred to.

R v Australian Stevedore Industry Board; ex parte Melbourne Stevedoring Co Pty Ltd (1953) 88 CLR 100; Minister for Immigration and Multicultural Affairs v Jia Legeng (2001) 205 CLR 507; Drumgold v Board of Inquiry & Ors (No 3) [2024] ACTSC 58, considered.

Fyfe v State of South Australia [2000] SASC 84; Warren v Coombes (1979) 142 CLR 531; Lee v Lee (2019) 266 CLR 129, referred to.

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Counsel
Applicant:		In person
Respondent:		Ms R Ellyard
Solicitors
Applicant:	In person
Respondent:	Victorian Government Solicitor’s Office

KAYE JA:

The applicant seeks leave to appeal the judgment and order of Judge Ginnane of the County Court dated 20 May 2024,[1] by which, pursuant to s 104U of the Corrections Act 1986 (Vic), his Honour approved the settlement of a proceeding brought by the applicant against the respondent. In that proceeding, the applicant claimed damages for personal injuries suffered by him while he was an inmate in Barwon Prison.
[1]Brazel v State of Victoria [2024] VCC 681 (‘Reasons’).
The application for leave to appeal specifies six proposed grounds, namely:
I.The Honourable Judge did not properly have the jurisdiction to hear the applications made separately by the defendant, and the plaintiff, given the ruling made by the Honourable Judge, His Honour Judge Ginnane in the ruling: (Brazel v State of Victoria (Ruling) [2022] VCC 2008).
II. That, it is often said that where and when there is even a perceived ‘bias which could bring the Judicial process into disrepute that the Judicial Officer should properly recuse himself, when any such application is made, in particular, in this case, and given the previous ruling as made in the ruling (Brazel v State of Victoria (Ruling) [2022] VCC 2008).
III. That, there was a clear bias held by the Honourable Judge, against the interests of the plaintiff, via the Honour Judges (sic) failure to properly consider the plaintiff application for His honour not to hear those application lodged by both the plaintiff and defendant.
IV.That, there was a clear application made by the plaintiff/applicant, for the Honourable Judge, His Honour, Judge Ginnane to recuse himself, and despite the findings as falsely reported and published in paragraph 61 of the ruling as published on the 20th day of May 2024. With His Honour simply remaining mute on the application made.
V.That the finding made by the Honourable Judge, His Honour, Judge Ginnane were (sic) not reasonable, in consideration of the totality of the evidence, and the history relating to the proceeding, with there being a clear chronicle of ongoing abuses of the plaintiffs rights held, by the defendant(s). With such abuses as committed, preventing the plaintiff from being in a position to be properly represented during the proceedings. This robbing the plaintiff of his right to have equality of arms, and with there, in real terms, being no even playing field assured by the Honouable (sic) Judge, and where and when, it was within His Honour’s judicial power to ensure that this occurred and given His Honours (sic) knowledge of the abuses and their physical and psychological effects upon the plaintiff/applicant.
VI.The plaintiff, an unrepresented litigant, not out of choice, but due to ongoing harassment at the hands of the defendant, with numerous breaches of rights held causing for the plaintiff to be gravely disadvantaged, robbed of any even playing field and the equality of arms doctrine as discussed in Ragg v Magistrates Court, with being robbed of this legal expertise, due to those illegal actions committed by the defendant, the plaintiff could not be expected to be in a position to properly present a defence to the application made by the defendants (sic) Counsel, and given His Honours (sic) attitude held toward the plaintiff.
The orders made by Judge Ginnane, in effect, approved the compromise of the common law proceedings, contained in a Deed of Release, signed by the applicant on 7 February 2024, and signed on behalf of the respondent on 9 February 2024. In order to properly understand the issues raised by the applicant on this application, it is necessary to set out the background circumstances that led to the parties signing that document.

Background and procedural history

In June 2013, the applicant, a prisoner in the custody of the State, commenced a proceeding in the County Court, in which he claimed damages for personal injury, arising from the deployment, by the respondent and others, of a chemical agent against him in a cell in the Metropolitan Remand Centre in May 2013. In the course of the proceeding, the applicant issued two summonses, in December 2020 and July 2021, alleging contempt of court on the part of officers of the State and of G4S, the operator at Port Phillip Prison. As at August 2023, the hearing of the first summons was part-heard, and evidence had not been called in relation to the second summons.
Judge Ginnane had the carriage of the interlocutory steps in each of the three proceedings, namely, the proceeding claiming damages for personal injury, and the two contempt proceedings. In the course of the proceedings, the applicant made an application that Judge Ginnane recuse himself on the grounds of actual or apprehended bias. Judge Ginnane refused that application, and gave written reasons for his decision on 29 November 2022.[2]
[2]Brazel v State of Victoria (Ruling) [2022] VCC 2008.
In August 2023, the damages claim, and the two summonses for contempt, were referred for judicial mediation. The mediation was convened before his Honour Judge Brookes, who was then a judge of the County Court, and was conducted on three dates, namely, 17 October 2023, 15 November 2023, and 17 November 2023. On each occasion, the applicant appeared remotely from Barwon Prison, and the respondent was represented by Ms Ellyard of counsel.
Following the conclusion of the mediation, the Victorian Government Solicitors Office (VGSO), on behalf of the respondent, on 21 November 2023, forwarded a proposed Deed of Release to the applicant. Clause 2.1 of the Deed addressed the provision of kitchen or cooking equipment to the applicant, which had been a source of contention between the applicant and Corrections. Clause 2.1(e) of the Deed provided that the respondent would ensure that the applicant had continued access to the use of a sandwich press in his cell at Barwon Prison, and continued access to the use of such a press at any prison facility in which he might otherwise be accommodated.
By a subsequent letter dated 28 November 2023, the VGSO wrote to the applicant, inviting him to highlight the areas of the Deed that he believed did not conform with the agreement in principle that had been reached at the mediation.
The applicant, by a letter dated 28 November 2023, responded in a detailed letter. For present purposes, the relevant part of it addressed clause 2.1(e), contending that Ms Ellyard, at the mediation, had informed Judge Brookes that the respondent was prepared to allocate to the applicant a blender, Birko jug, sandwich press and frypan, which were necessary because of the applicant’s dietary requirements.
On 30 November 2023, the VGSO replied to the applicant by a letter, inviting him to specify, in writing, the alternative wording that he would propose to have included in the Deed of Release. The applicant responded by a letter of the same date, in which he proposed that clause 2.1(e) would state that the respondent would ensure that he have continued access to a sandwich press, frypan, Birko jug and blender in the cell in which he was housed.
On 7 December 2023, the VGSO emailed a letter to the applicant, acknowledging receipt of his letter dated 30 November. Specifically, in the letter, the writer thanked the applicant for the proposed amendments to clause 2.1(e), which referred to the current arrangements that he had in place for cooking equipment, including the sandwich press, frypan, Birko jug and blender. The letter stated that the VGSO had amended clause 2.1(e) ‘accordingly’.
However, despite that assertion, clause 2.1(e) of the draft Deed, that accompanied the letter, was expressed as follows:
The State will ensure Mr Brazel’s continued access to the use of a sandwich press, Birko jug and blender in his cell at H.M. Prison Barwon and continued access to the use of these items and a fry pan at any prison facility in which he is incarcerated that can safely accommodate those items for the duration of his time in custody.
There then ensued further correspondence between the parties, which did not refer to the particular issue that has given rise to the dispute in this case, namely, the lack of an express term in the Deed that entitled the applicant to a frypan in his cell.
On 16 January 2024, the VGSO sent a letter to the applicant, enclosing a further draft of the Deed, and drawing his attention to three clauses, including a new clause, clause 2.3, which purported to contain an acknowledgment, by the applicant, that the respondent and the State Group made ‘no guarantee to facilitate and/or organise appointments and/or treatment by External Medical Providers in relation to the Settlement Amount, clause 2.1, the Settlement Matters and this Deed’. The Deed contained clause 2.1(e) in the same terms in which it was drafted in the draft Deed forwarded to the applicant on 7 December 2023.
On 17 January 2024, the applicant responded by a letter, taking exception to the inclusion of clause 2.3, which, he maintained, conflicted with his rights under s 47(1)(f) of the Corrections Act.
On 23 January 2024, the applicant had a telephone conference with Ms Melissa Schilling, a lawyer at Power & Bennett Lawyers. Ms Schilling had previously provided legal advice to the applicant in various matters since December 2019. The telephone conference on 23 January had been organised at the request of the applicant in respect of the proposed settlement of the matter.
Before the conference, Ms Schilling had attempted to contact the applicant. There were a number of delays in her being able to make contact with the applicant. Ultimately, Ms Schilling had a conference with the applicant for some twenty minutes. At that point, Ms Schilling did not have available to her the draft Deed, but it would seem that the applicant read to her the new proposed clause 2.3.
Ms Schilling then contacted the VGSO, requesting a copy of the draft Deed. On 24 January 2024, the applicant himself emailed a copy of the draft Deed to Ms Schilling. On 25 January 2024, Ms Schilling then emailed to the applicant a copy of a draft letter she had prepared to the VGSO. On the same date, the applicant responded by email to Ms Schilling, instructing her to send the draft letter to the VGSO.
Accordingly, Ms Schilling sent the letter to the VGSO. The letter objected to the inclusion of clause 2.3 in the Deed, and Ms Schilling contended that that clause contravened the Corrections Act. The letter further stated that the applicant was prepared to endorse the draft Deed on the basis that clause 2.3 be removed, and on the applicant being assured that his rights under s 47(1)(f) of the Corrections Act were not compromised. (The applicant did not receive a copy of Ms Schilling’s letter until 31 January).
On 29 January 2024, the VGSO responded by email, stating that it was seeking instructions concerning that matter.
On 7 February 2024, the VGSO, by email, forwarded to the applicant a draft Deed, accompanied by a letter, stating that, in order to facilitate the resolution of the matter, the VGSO had been instructed to remove clause 2.3 from the Deed. Clause 2.1(e) in the Deed was in the same form, and in the same terms, as clause 2.1(e) of the draft Deeds that had previously been forwarded to the applicant on 7 December and on 16 January, and which I have earlier quoted.[3]
[3]Above, [12].
On 7 February 2024, the applicant signed the Deed of Release and the proposed consent orders, and, by email, forwarded both documents to the VGSO. On 9 February 2024, the Deed was signed by an authorised officer of the respondent. On 13 February, the VGSO forwarded a letter to the applicant, confirming that the respondent had signed the Deed of Release, and enclosing a copy of the Deed.
On 14 February 2024, the applicant had a conversation with Mr Colin Thompson, the general manager of Barwon Prison. Without setting out the content of the conversation in detail, it is sufficient to note that, in the course of the conversation, Mr Thompson made it clear to the applicant that he was not entitled to have a frypan in his cell in Barwon Prison.
As a consequence, the applicant immediately sent a letter to the VGSO dated 14 February 2024. In the letter, the applicant stated that he had endorsed the Deed on the understanding, and based on what Ms Ellyard had stated to Judge Brookes in the mediation, namely, that the four cooking items (including the frypan) would be issued to him in his cell. The applicant further stated that, since the date of the mediation, he had not been disabused of that understanding. He stated that because the terms of the understanding were not being met by the respondent, he would not be seeking approval of the Deed by the Court. Rather, he would be making an application to Judge Ginnane to set aside the Deed.
In response, the VGSO sent a letter to the applicant on the same date, stating that the respondent did not consider that the Deed of Release entitled the applicant to in-cell use of a frypan, and noting that, in accordance with clause 1.2 of the Deed, the applicant was required to apply to the court for approval of the Deed within 30 days.

County Court proceedings

By summons dated 6 March 2024, the respondent made an application to the County Court seeking approval of the proposed compromise, contained in the Deed dated 7 February 2024, and consequential orders.
In response, the applicant issued an application, also dated 6 March 2024, seeking an order that the proposed Settlement Deed be set aside, ‘due to the non-compliance of the defendant in relation to the terms as agreed upon’.
The application by the respondent was supported by an affidavit of Matthew Hocking of the VGSO. The affidavit exhibited the relevant correspondence and draft Deeds, that passed between the parties between 28 August 2023 and 1 March 2024.
In response, the applicant deposed an affidavit dated 12 March (and affirmed on 15 March). In addition, the applicant relied on an affidavit, deposed by Ms Schilling on 22 March 2024.
The hearing of the two summonses took place before Judge Ginnane on 7 March 2024. At the conclusion of the hearing, his Honour reserved his decision.
Subsequently, the applicant sent a number of communications to the judge’s chambers. As a result, the judge listed the matter for a further hearing on 26 March 2024, in which his Honour clarified with the applicant the stance, which he was taking in relation to the application of the respondent for approval of the Deed.
In two comprehensive written submissions, which the applicant filed before Judge Ginnane, and in oral submissions, the applicant clarified and expanded upon the basis upon which he opposed the approval of the Deed of Settlement dated 7 February 2024. As I have noted, the issue, that originally gave rise to the dispute concerning the Deed, was the content of clause 2.1(e), and the approach adopted by Mr Thompson to the right, which the applicant had asserted, to have a frypan available to him in his prison cell.
In the course of the written submissions, and oral submissions, the applicant expanded on the basis of his opposition to approval of the Deed. In essence, he complained that, as a result of the conduct of Mr Thompson and other prison officers at Barwon Prison, he had been unable to obtain sufficient legal advice from his solicitor, Ms Schilling. The applicant noted that he received the second-last version of the proposed Deed on 16 January 2024, after which he spoke with Ms Schilling on 23 January. However, at that time, he had not been able to forward a copy of the Deed to Ms Schilling. The focus of the advice, which he obtained from Ms Schilling, concerned the proposed clause 2.3, which had been recently inserted into the Deed by the respondent, but subsequently was deleted from it. As a result of a number of difficulties, the telephone conference with Ms Schilling was restricted to 20 minutes.
The applicant said that that was the limit of the contact that he had had with Ms Schilling between 23 January and 7 February, when he signed the Deed of Settlement. He contended that he would not have endorsed the Deed in its current form, if he had known that it did not reflect the terms that, he contended, had been accepted and agreed during the judicial mediation before Judge Brookes, and if he had received appropriate legal advice about that matter. He submitted that he had been precluded, by the conduct of Mr Thompson, from receiving the necessary legal advice from Ms Schilling before he executed the Deed. In his written submissions, the applicant contended that the matter then before the court had nothing to do with the ‘frypan issue’, but was about the conduct of Mr Thompson, who, he contended, had interfered with his rights and his ability to obtain independent legal advice before he signed the Deed.
In response, the respondent contended that the Deed was clear evidence that an agreement had been reached between the parties. It was submitted that any disagreement about how the agreement would be performed by the parties was a separate issue, which was not relevant to the question whether the Deed should be approved. It was submitted that, based on the correspondence between the parties, that was exhibited to the affidavit of Mr Hocking, the court should be satisfied that the applicant had participated fully in the negotiations that preceded the execution of the Deed, and that there was no appropriate basis for the applicant to assert that there was no binding agreement between the parties.

The judge’s reasons

In his reasons, Judge Ginnane first addressed a submission, by the applicant, that the parties had reached a binding agreement at the conclusion of the mediation on 17 November 2023, and that there was a term of that agreement that he would be permitted to use an electric frypan in his cell. Judge Ginnane concluded, in relation to that matter, that the parties did not reach a binding agreement at the mediation, and that there was no binding agreement between them until the execution of the Deed of Settlement.[4]
[4]Ibid [20]–[22].

The judge then reviewed, in detail, the correspondence that passed between the parties preceding the execution by them of the Deed of Settlement on 7 February,[5] and his Honour also referred to the events that had occurred after he had reserved his decision for judgment on 7 March 2024.[6]
[5]Ibid [47]–[58].
[6]Ibid [49].
The judge noted that the applicant had alleged that he had been effectively ‘suborned’ by the court in the hearing on 7 March, and further (or alternatively), that he had lacked an understanding of the matters that were referred to in the court on that date. The judge noted that no application had been made to him that he should disqualify himself from determining the questions posed by the summonses that were before him, that no such application was subsequently made in the applicant’s correspondent with the court, and that no application was made in the course of the further hearing, conducted on 26 March 2024. The judge further noted that the applicant is not ignorant of his rights to make such an application, if he had been so minded to do so.[7]
[7]Ibid [61].
The judge then turned to the central submission, by the applicant, that the agreement should be set aside, because it had been procured by a misrepresentation by the respondent about the provision to him in his cell of a frypan, and because (he alleged) the respondent had deliberately and unlawfully interfered with his capacity to obtain advice about that part of the Deed.
The judge noted that, before the applicant executed the Deed, he had not only told the VGSO that he had given consideration to it, but he had also contested aspects of it, and he had received assistance about its contents from Ms Schilling.[8] The judge rejected the submission, by the applicant, that the Deed should be set aside on the basis of misrepresentation for ten reasons, namely:
[8]Ibid [84].
(1)The fact that a party might have misapprehended the meaning of language in an agreement is not, of itself, a basis for the agreement to be set aside.[9]
(2)A party to an agreement, who fails to read an agreement, and signs it, cannot ordinarily rely on that circumstance to set aside the agreement.[10]
(3)The language used in the first version of the draft Deed did not include any item in the applicant’s cell other than a sandwich press. Following further correspondence, the language in the Deed was amended to specifically include the provision of some additional cell items, but not a frypan.[11]
(4)The Deed, in its revised terms, was made available to the applicant, and the applicant made it available to his solicitor.[12]
(5)The applicant wrote to the VGSO, stating that the Deed was acceptable, and he returned an executed copy of it to the VGSO.[13]
(6)The applicant did not take any issue with the Deed until after it was executed by him.[14]
(7)The applicant stated that it was not until after he executed the Deed and made a request for a frypan, which was rebuffed, that he appreciated there was a dispute about the content of clause 2.1(e).[15]
(8)The applicant had been afforded legal advice. On the following day (24 January), Ms Schilling was provided, by him, with a Deed, and she provided advice to him about it.[16]
(9)A misunderstanding by a party as to the content of a Deed, which was not induced by actionable representation by the other party, is not a sufficient basis upon which to rescind a deed.[17]
(10)A court may rectify a contract where there has been a unilateral mistake by one party as to it, but only if the other party knew of that mistake and did not draw the relevant misunderstanding to the attention of the first party.[18]
[9]Ibid [86].
[10]Ibid [87].
[11]Ibid [88].
[12]Ibid [89].
[13]Ibid [90].
[14]Ibid [91.
[15]Ibid [92].
[16]Ibid [93].
[17]Ibid [94].
[18]Ibid [95].
The judge considered that the respondent was not on notice that the advice, that the applicant received from Ms Schilling, was in any way insufficient or deficient in a material respect.[19]
[19]Ibid [96].
The judge rejected the contention, by the applicant, that he had been misled or deceived by the respondent about which items he would be provided for use in his cell.[20] The judge also did not accept the contention, by the applicant, that the letter, that he wrote to Ms Schilling dated 24 January 2024, was evidence that he was dependent on receiving final advice from her, concerning the contents of the Deed.[21]
[20]Ibid [97]–[98].
[21]Ibid [99].
The judge noted that, after his telephone conference with Ms Schilling on 23 January, the applicant did not have any further discussion with her about the content of the Deed. The only issue, which arose for resolution between the parties, concerned clause 2.3, which Ms Schilling raised with the VGSO. When that clause was removed from the Deed, the applicant executed it.[22] Accordingly, the judge concluded that the agreement, constituted by the Deed, had been entered into freely by the applicant, and his Honour was satisfied that there was no operative or actionable representation by the respondent, which affected the applicant’s election to execute the Deed.[23]
[22]Ibid [110].
[23]Ibid [118].
The judge then noted that, following the reconvened hearing on 26 March 2024, the applicant had forwarded another item of correspondence to his chambers and to the VGSO, in which he complained, because he thought he had been bullied by the judge in the hearing on 26 March. The judge rejected that proposition.[24]
[24]Ibid [120].
Accordingly, the judge approved the agreement, constituted by the Deed. His Honour granted the relief sought in the respondent’s summons, and dismissed the applicant’s summons.

Application for leave to appeal

Section 14A(1) of the Supreme Court Act 1986 provides that, subject to the exceptions prescribed in sub-s (2) (which are not applicable to the present case), any civil appeal to the Court of Appeal requires leave to appeal to be obtained from the Court. Section 14C provides that the Court of Appeal may only grant an application for leave to appeal under s 14A if it is satisfied that the appeal has ‘a real prospect of success’.
In Kennedy v Shire of Campaspe,[25] Whelan and Ferguson JJA interpreted that test, in terms which have been followed on numerous occasions, as requiring the applicant to demonstrate that the proposed appeal has a ‘real’, as opposed to a ‘fanciful’, chance of success.[26]
[25][2015] VSCA 47.
[26]Ibid [12].
As I have noted, the applicant has specified six proposed grounds of appeal in his application for leave to appeal. In his written case, he has appropriately addressed them as, in effect, comprising three proposed grounds, namely:
(1)Judge Ginnane was affected by actual or apprehended bias (grounds 1 to 4);
(2)the finding, by the judge, that the applicant had received appropriate legal advice before he signed the Deed, was unreasonable (ground 5);
(3)the judge failed to properly consider the conduct of the respondent, at the mediation, in ‘running down the clock’ in the mediation process, thus depriving the applicant of the protections of the judicial mediation process.

First grounds (grounds 1 to 4) — context

The context to the first set of grounds, which contend actual or apparent bias on the part of Judge Ginnane, arises from the earlier ruling by the judge in the proceeding on 22 November 2022, in which his Honour rejected an application by the applicant that he disqualify himself from further conduct in the proceeding.[27]
[27]Brazel v State of Victoria (Ruling) [2022] VCC 2008 (‘Ruling’).
That application was made by the applicant in July 2022. It was based on comments, which the judge had made in the course of a hearing on 15 October 2020, related to the progress of the proceedings. Those comments concerned the character of a solicitor who had, for a considerable period of time, had the conduct of the proceeding on behalf of the VGSO.
Over the course of preliminary hearings associated with the proceeding in the County Court, the applicant had apparently made a number of allegations concerning that solicitor’s professional probity in her dealings with him. In his ruling dated 22 November 2022, the judge noted that, on 15 October 2020, having learnt of the complaints made about her by the applicant, the solicitor (Ms Coombes) appeared before the judge and stated that she took umbrage at what had been said about her by the applicant. In the course of addressing that matter, the judge (on 15 October 2020) made the following comment:
Yes, I have said certainly very early on in this proceeding that — and people can — Mr Brazel can — if Ms Schilling in due course wants to be heard any further about it — I’ve had professional in court dealings with Ms Coombes for years in a variety of matters, and it would take considerable persuasion on anybody’s part to satisfy me that Ms Coombes would ever act unethically or unlawfully for any intentional purpose.
In his ruling dated 22 November 2022, concerning the applicant’s application that he disqualify himself, the judge acknowledged that that comment should not have been expressed in the manner in which it was.[28] His Honour also acknowledged that it would have been appropriate for him to have explained expressly to the applicant that, if he wished, he was at liberty to make an application that his Honour should disqualify himself from further conduct of the proceeding.[29]
[28]Ruling, [3].
[29]Ibid [3].
The judge noted that, during the interlocutory stages of the proceeding, judges of the County Court, including himself, had made orders that were designed to address complaints, made by the applicant, about what he considered to be efforts by prison management to frustrate the conduct of the proceeding. The judge noted that, as part of that process, he, himself, had given directions to address a complaint made by the applicant concerning alleged unlawful opening of his mail by prison authorities.
The judge acknowledged that it was understandable that the applicant, having heard his comments about the former solicitor who had the conduct of the proceedings, might consider that the judge’s refusal to peremptorily sanction the solicitor, or take some form of some disciplinary action, had displayed a favourable disposition to her and/or to the VGSO and/or to their client.[30]
[30]Ibid [24].
However, the judge noted that, against that background, a reasonable person would also take into account a number of other factors that include the following. The judge had endeavoured to assist the progress of the summons on the contempt issue by the applicant, with the aim of ensuring that any sanction in that respect be directed to an alleged contravention of specific court orders.[31] The judge had also taken steps to ensure that the applicant had been afforded the necessary time to prosecute the summons for the contempt, and to ensure that he was not hampered by administrative difficulties and time restrictions that he faced when appearing remotely from Barwon Prison.[32]
[31]Ibid [25].
[32]Ibid [26].
The judge then addressed the application that he disqualify himself for actual bias. He rejected that application in the following terms:
I do not accept that the comments I made about the former solicitor employee with the VGSO is evidence of actual bias. In the eleven years I have served as a judicial officer I have not had any personal dealings with the solicitor. My acquaintance with her is limited to the fact that at a much later stage than me, she was a solicitor at the same firm in which I undertook my Articles of Clerkship, and that in subsequent years, she was a solicitor at a firm at which acquaintances of mine also worked and so, on the odd occasion, she attended a social gathering at which I was in attendance. She also appeared on occasions before me in the course of my service as a magistrate and prior to my appointment to the County Court. I am not satisfied that the considerations relating to a former association between a judge with legal representatives generally, and the suite of connections that might warrant a judicial officer from recusing him or herself as a result of the same as was addressed, for example, in Bakarich v Commonwealth Bank of Australia[33] and the various authorities cited therein have like application here.[34]
[33][2010] NSWCA 43.
[34]Ibid [27].
In addressing the issue of apprehended bias, the judge noted that it is important that a judge should not accede too readily to such an application. If his Honour acceded to the application, the summons for contempt would be heard and determined by another judge, who would not be as well acquainted as his Honour with the substantial factual background relevant to the contempt proceeding.[35] The judge further noted that the solicitor from the VGSO, about whom he had made the favourable comment, no longer had the carriage of the proceedings, and, apparently, was no longer employed by the VGSO.[36] Finally, the judge noted that, on the hearing of the application by the applicant that he disqualify himself for bias, the applicant had accepted that the judge was not actually biased, but he relied on there being a perceived bias, arising from the comment that the judge had made about the solicitor.
[35]Ibid [32].
[36]Ibid [33].
Based on those matters, the judge concluded that he was satisfied that a fair-minded lay observer, having regard to all of that information, would not reasonably apprehend that he might not bring an impartial and unprejudiced mind to the resolution of the questions that he was required to decide in the contempt proceeding. Accordingly, the judge concluded that he should not disqualify himself from further carriage of the summons for contempt, or from the conduct of further directions to progress the applicant’s substantive proceedings to its hearing.[37]
[37]Ibid [37]–[38].
In his reasons, the judge noted that, following the reconvened hearing on 26 March 2024, he had received further correspondence from the applicant, the substance of which was a complaint, by him, that he felt he had been bullied and coerced by the judge in the course of the hearing on 26 March 2024. The judge attached a copy of that correspondence to his reasons. His Honour, in respect of the complaint, stated:
Again, other than acknowledging that the plaintiff has the right, along with any litigant, to make complaint about a judicial officer, I consider the claim unmeritorious, but if required, the issue is best assessed by others. It would be inappropriate for me to engage with these complaints as part of these reasons.[38]
[38]Ibid [120].

First proposed ground (grounds 1 to 4) — submissions

In support of the first basis on which he relies (comprising grounds 1, 2, 3 and 4), the applicant commenced his written case by noting that, due to the conduct of the respondent in illegally monitoring and recording his telephone calls with legal counsel, he had been forced to represent himself in the hearing before the judge. In those circumstances, he submitted, his state of mind, and his perception, were more pertinent than would otherwise be the case, given the ‘disparity of power’ between the parties. The applicant emphasised that the disparity was of particular relevance, in view of the fact that, as his gaoler, the respondent had used its power over him to gain an unfair advantage in the proceeding.
The applicant contended that in the proceedings before Judge Ginnane, in which he had sought that the judge disqualify himself, his Honour had previously indicated that he would not be the trial judge, and that he would not be making any final or conclusive order in the proceeding.
The applicant referred to a passage in the substantive judgment of the judge, in which his Honour noted that, in the hearing on 7 March 2024, the applicant had not made any application that he disqualify himself from determining the questions posed by the two summonses that were before his Honour.[39] The applicant submitted that that observation by the judge was erroneous, particularly in view of the contents of an affidavit, that he deposed on 12 March 2024.
[39]Reasons, [61].
In that affidavit, the applicant stated that, in documents that he had served and filed before the hearing on 7 March, he had raised the question whether Judge Ginnane could properly hear the application, in view of the applicant’s previous application (in 2022) that the judge recuse or disqualify himself from hearing the matter, ‘and given the plaintiff’s application for the honourable judge to recuse, and or, disqualify himself from further management of the matter’.
The applicant further deposed in the affidavit that, in his earlier ruling, Judge Ginnane had stated that he dismissed the application (that he recuse himself from hearing the interlocutory steps in the proceeding) ‘… due to the reality that his Honour had already ruled himself out as trial judge’.
In those circumstances, the applicant submitted that it was implausible for the judge to hold the reasonable belief that he had not made an application that his Honour should not preside over the hearing between himself and the respondent. The applicant submitted that the judge thus ignored the application, made by him, that the judge should disqualify himself from hearing the case, which, it was contended, was further evidence of bias.
In response, counsel for the respondent commenced by submitting that the matters, advanced in respect of the applicant’s previous application in 2022, and on which the judge previously ruled, are insufficient to constitute either actual or apprehended bias by the judge.
Counsel accepted that the judge, in his ruling in 2022, inferred that he would not be hearing and determining the trial of the substantive matters that were then before the court. However, at the time at which the judge heard the substantive matter in 2024, the nature of the proceeding had significantly altered. In 2022, the court was concerned with (among other matters) a claim by the applicant for damages for personal injury sustained by him while in custody in the Metropolitan Remand Centre. On the other hand, the issue, that was required to be determined by his Honour in March 2024, was quite different, namely, an application by the respondent for approval of the Deed of Settlement dated 7 February 2024.
Counsel further submitted that the transcripts of the hearings on 7 March and 26 March 2024 reveal that the applicant did not make an application that the judge disqualify himself on the basis of either actual or perceived bias. Before the hearing on 7 March, the applicant had sought to file an unsworn affidavit dated 19 February. In that affidavit, the applicant had not raised any objection to the judge hearing the application by the respondent for approval of the Settlement Deed. Counsel further noted that it is evident that the judge did not receive or have reference to the affidavit, deposed by the applicant on 12 March 2024. In his reasons, the judge summarised, in some detail, the correspondence and documents which he had received from the applicant since the conclusion of the hearing on 7 March 2024. In that summary, the judge did not refer to, or note, the affidavit deposed by the applicant on 12 March.[40] In those circumstances, it was submitted, it was correct for the judge to record in his reasons that the applicant had not, in fact, made any application to disqualify himself from determining the questions that were posed by the summonses that were before his Honour.[41]
[40]Reasons, [49]–[58].
[41]Ibid [61].
Counsel further noted that it is evident that, in the course of each hearing on 7 March and 26 March, the judge gave appropriate assistance and guidance to the applicant in the presentation of his case. Further, the judge, in his reasons, gave sufficient explanation for his conclusion that no legal binding agreement had been reached between the parties at the mediation, and for his conclusion that the Deed of Settlement should be approved.

Counsel further noted that the changes by the applicant in his position concerning the Deed, and his wide-ranging complaints about the conduct of the respondent, were all given careful consideration by the judge during the course of the hearing. Counsel submitted, no fair-minded observer could conclude that the judge might not have been bringing an open mind to the determination of the issues before his Honour.

First proposed grounds (grounds 1 to 4) — analysis and conclusion

The first proposed grounds relied on by the applicant (grounds 1 to 4), are based on the proposition that the judge’s determination was affected by either actual bias or apparent bias. In particular, grounds 1 and 3 allege that the judge should have disqualified himself on the basis of actual bias. Ground 2 and ground 4 allege apparent bias.
The principles relating to a ground of appeal, based on actual bias, were expounded in authoritative terms by Dixon CJ, Williams, Webb and Fullagar JJ in their joint judgment in R v Australian Stevedore Industry Board; ex parte Melbourne Stevedoring Co Pty Ltd.[42] That case concerned a public statement, made by a delegate of the Australian Stevedoring Industry Board who held an inquiry, as to the fitness of an employer to continue to be a registered employer. The High Court stated the principles as follows:
It is not difficult to understand that the employer whose case he must judge should feel alarmed at a statement appearing in the press from which it might well be inferred that upon some of the contentions he wished to advance his case had been prejudged. But when bias of this kind is in question, as distinguished from a bias through interest, before it amounts to a disqualification it is necessary that there should be strong grounds for supposing that the judicial or quasi-judicial officer has so acted that he cannot be expected fairly to discharge his duties. Bias must be “real”. The officer must so have conducted himself that a high probability arises of a bias inconsistent with the fair performance of his duties, with the result that a substantial distrust of the result must exist in the minds of reasonable persons. It has been said that “preconceived opinions – though it is unfortunate that a judge should have any – do not constitute such a bias, nor even the expression of such opinions, for it does not follow that the evidence will be disregarded”, per Charles J, Reg v London County Council; Ex parte Empire Theatre (1894) 71 LT 638, at p 639 (at p116).[43]
[42](1953) 88 CLR 100 (‘Australian Stevedore Industry Board’).
[43]Ibid 116.
In similar terms, in Minister for Immigration and Multicultural Affairs v Jia Legeng,[44] a case in which actual bias was raised, Gleeson CJ and Gummow J stated the principles in the following terms:
Decision-makers, including judicial decision-makers, sometimes approach their task with a tendency of mind, or predisposition, sometimes one that has been publicly expressed, without being accused or suspected of bias. The question is not whether a decision-maker’s mind is blank; it is whether it is open to persuasion. The fact that, in the case of judges, it may be easier to persuade one judge of a proposition than it is to persuade another does not mean that either of them is affected by bias.[45]
[44](2001) 205 CLR 507 (‘Jia Legeng’).
[45]Ibid 531 [71].
Based on those principles, the courts have emphasised that the test for the determination of actual bias is stringent, so that a finding to that effect should not be lightly made.[46]
[46]Jia Legeng (2001) 205 CLR 507, 531 [69] (Gleeson CJ, Gummow J); Sun Zhang Qui v Minister for Immigration and Ethnic Affairs (1997) 151 ALR 505, 562 (Burchett J), 562–3 (North J); Gamaethige v Minister for Immigration and Multicultural Affairs (2001) 109 FCR 424, 442–3 [79]–[80] (Stone J); South Western Sydney Area Health Service v Edmonds [2007] NSWCA 16, [97] (McColl JA).
The rule, as to apprehended (or apparent) bias, is concerned with the maintenance of public confidence in the administration of justice.[47]
[47]See for example Webb v The Queen (1994) 181 CLR 41, 37 (Mason CJ, McHugh J); CNY 17 v Minister for Immigration and Border Protection (2019) 288 CLR 76, 98 [55] (Nettle and Gordon JJ).
The principles relating to apprehended bias are well-established.[48] For the purposes of the present application, it is sufficient to adopt the summary of the principles that I set out in my judgment in Drumgold v Board of Inquiry & Ors (No 3)[49] as follows:
[48]Webb v The Queen (1994) 181 CLR 41, 47 (Mason CJ, McHugh J); CNY17 v Minister for Immigration and Border Protection (2019) 268 CLR 76, 98–99 [55]–[59] (Nettle and Gordon JJ); Livesey v The New South Wales Bar Association (1983) 151 CLR 289, 293–4; Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337, 344–345 [6]–[7] (Gleeson CJ, McHugh, Gummow and Hayne JJ); Duncan v Ipp (2013) 304 ALR 359, 396 [147]–[150] (Bathurst CJ).
[49][2024] ACTSC 58.
At the risk of repetition, it is convenient to summarise the principles, which I have discussed, as follows:
(1)In a case in which apprehended bias is alleged, the applicable test is whether a fair-minded lay observer might reasonably apprehend that the decision-maker might not have brought an impartial mind to the resolution of the question, which that decision-maker is required to determine.
(2)So defined, the test involves an assessment of possibility on two levels:
(a)the question whether a fair-minded lay observer might entertain the material apprehension concerning the decision-maker;
(b)the requirement that that apprehension, by the fair-minded lay observer, is that the decision-maker might not bring an impartial mind to the resolution of that question.
(3)Accordingly, no prediction by the court is involved in determining whether the decision-maker might not have brought an impartial mind to bear.
(4)Although the test is defined in terms of possibility at two levels, nevertheless, a court should not lightly conclude that an allegation of apprehended bias is made out. Reasonable apprehension, at each level, must be ‘firmly established’. The possibility of bias must be real, and not merely remote.[50]
(5)The application of the principle of apprehended bias to decision-makers, other than courts, must accommodate relevant differences between court proceedings on the one hand, and the proceedings before the Board of Inquiry in the present case.
(6)The hypothetical fair-minded lay observer is assumed to know and understand both the nature of the proceeding, and the material objective facts that relate to the processes undertaken by the decision-maker.
(7)The application of those principles involves three steps in the present case:
(a)the identification of the fact or circumstance which it is said might have lead the first defendant to decide the issues before it other than on their merits;
(b)there must be demonstrated to be a logical connection between that fact and circumstance, and the apprehended deviation from the course of determining the issues before the Board of Inquiry on their merits;
(c)the assessment of the reasonableness of that apprehension from the perspective of the fair-minded lay observer.[51]
[50]Ebner (2000) 205 CLR 337, 345 [7].
[51]Ibid [218].
In the present case, the applicant, at different stages in the proceeding, has relied on three bases upon which to contend that there was either actual or apprehended bias on the part of the trial judge. First, it was submitted that, by reason of the matters on which the judge made his ruling in 2022 in response to the bias application by the applicant, the judge was disqualified from hearing and determining the substantive application for approval of the Settlement Deed. Secondly, it was submitted that the judge evinced bias in his reasons by stating that no application had been made by the applicant that his Honour should disqualify himself,[52] in circumstances in which the applicant, in his affidavit deposed 12 March 2024, had expressly made such an objection. Thirdly, it was submitted (at least before the trial judge) that the applicant had felt that he had been ‘bullied’ by the trial judge in the hearing on 7 March 2024. I observe that that third basis was not expressly relied on by the applicant on this application, but it is relevant to consider it in the context of the present application.
[52]Ibid [61].
In respect of the first basis, it is important to bear in mind that the application before the judge in 2022, that he disqualify himself, was made on the sole basis of the comment, made by the judge concerning the solicitor then acting for the respondent, in the course of an interlocutory hearing on 15 October 2020, and which I have quoted earlier in these reasons.[53] In other words, the application, by the applicant, in 2022 was made on the basis that the judge, in the interlocutory stages of the hearing, made a favourable comment concerning the ethical propriety of the then solicitor acting for the respondent.
[53]Above, [50].
It is clear that as a result of those remarks that the judge would have been disqualified (by both actual and apparent bias) from hearing any application in which the solicitor (Ms Coombes) was involved, or which involved an issue concerning her credibility or reliability. However, in the present context, two points are clear. First, at the time of the ruling in 2022 (and at the time of the trial in the present case in 2024), Ms Coombes had ceased to be an employee of VGSO. Secondly, and in any event, the issues, which the judge was required to determine in the application by the respondent for the approval of the Settlement Deed, did not involve, in any way, Ms Coombes, or any aspect of her conduct, whether in her previous role as the solicitor for the respondent or otherwise.
It is apparent that, in his ruling in 2022, the judge implied that he would not be the judge who heard and determined what were then the substantive proceedings before the court. Those proceedings were, essentially, the claim by the applicant for personal injuries, which he had sustained while in custody at the Metropolitan Remand Centre in 2013, and two summonses for contempt of court, instituted by the applicant, in which he alleged illegal interception, by prison authorities, of correspondence sent to him by his legal practitioner.
The issues that the judge would have needed to determine in respect of those matters, were significantly different to the issue, that was before the judge in 2024, namely, the application by the respondent for approval of the Deed of Settlement. Any reservation, which the judge might have felt concerning presiding over the claim for personal injuries and the two contempt proceedings, could not, logically, apply to his Honour’s capacity to fairly and objectively hear and determine the application by the respondent for approval of the Settlement Deed.
Specifically, and in terms of the legal principles concerning actual bias which I have outlined earlier, it could not be concluded that the judge’s express comments, about the ethical conduct of the respondent’s former solicitor, could constitute a logical basis for considering that the judge, in determining the application for approval of the Settlement Deed, could not be expected to fairly discharge his judicial duties free of bias and predetermination.[54]
[54]Australian Stevedore Industry Board (1953) 88 CLR 100, 116.
Nor, applying the principles concerning apprehended bias that I have set out earlier, could it be concluded that, by reason of the comments made by the judge concerning the solicitor in 2022, a fair minded lay observer might reasonably apprehend that the judge might not have brought an impartial mind to the application, by the respondent, for approval of the Settlement Deed.
The second basis, upon which the applicant has contended that the decision of the judge was affected by bias, was based on the passage in his Honour’s judgment in which his Honour noted that the applicant, in the hearing before him, had not made any application that he should disqualify himself.[55]
[55]Reasons, [61].
In respect of that issue, it is, first, not evident that the affidavit, deposed by the applicant on 12 March 2024, was provided to, or before, the judge. The applicant himself, in the hearings before the judge on 7 March 2024 and 26 March 2024, did not refer to the affidavit. Nor did he suggest or submit that the judge should disqualify himself on the basis of bias. As the respondent has noted, the judge, in his reasons, outlined in some detail the correspondence and documents, which the applicant had sent to his chambers after the conclusion of the hearing on 7 March 2024.[56] The judge did not refer to, or note, the affidavit deposed by the applicant.
[56]Reasons, [50]–[58].
Nevertheless, and in any event, if, in fact, the judge did receive or have before him the affidavit of 12 March 2024, the applicant has not demonstrated how it should follow, as a consequence, that the judge should have disqualified himself. In that respect, the applicant, in oral submissions in the present hearing, placed some emphasis on the observation, by his Honour in his reasons, that the applicant had not sought that he should disqualify himself from hearing the application for approval of the Settlement Deed.[57] If, hypothetically, the judge were incorrect in making that observation, that error could not logically constitute a basis for concluding that the judge was actually biased. Nor could it properly form the basis of a reasonable apprehension by a fair-minded lay observer that, by reason of that aspect of the judge’s reasons, it would follow that the judge might not have brought an impartial mind to the resolution of the question, whether the Settlement Deed should be approved.
[57]Reasons, [61].
The third matter, relevant to the issue of bias, arises from correspondence that the applicant forwarded to the judge’s chambers, and which were referred to in his Honour’s reasons, in which the applicant complained that he had felt bullied and coerced by the judge in the course of the hearing on 26 March 2024. In his reasons, the judge, while acknowledging that the applicant had the right to make such a complaint, considered that the claim was ‘unmeritorious’.[58]
[58]Reasons, [120].
The applicant did not raise that matter in the application for leave to appeal. However, in the context of the current application, it is relevant to give it some brief consideration.
The applicant was unrepresented, both at trial and on this application. The principles, which apply in such a case, are well-established. Fundamentally, a judge has a duty to ensure a fair trial, by giving appropriate assistance to a self-represented litigant, while at the same time maintaining both the appearance and the actuality of judicial neutrality.[59] In particular, the judge is required to give such assistance to an unrepresented person as to enable that person to have a reasonable opportunity to advance his or her own case, and to be informed of and respond to the opposing case.[60] The assistance, which is given by the judge, necessarily depends on the particular circumstances of the case, but may include providing information to the litigant, about the relevant legal and procedural issues involved in the case.[61]
[59]Tomasevic v Travaglini (2007) 17 VR 100, 132 [155] (Bell J) (‘Tomasevic’).
[60]Roberts v Harkness (2018) 57 VR 334, 356 [53] (Maxwell P, Beach and Niall JJA).
[61]Tomasevic (2007) 17 VR 100.
I have carefully read the transcript of the hearings before the judge on 7 March and 26 March respectively. It is quite clear, from those transcripts, that the judge appropriately complied with those principles. In particular, his Honour sought to guide the applicant as to the issues, which he needed to address, and he gave the applicant significant (and, indeed, generous) opportunity to address them.
Without rehearsing the totality of the transcript, the following summary of the two hearing dates demonstrates that perception.
On 7 March 2024, the judge, at an early stage, explained to the applicant his understanding of the fundamental elements of the applicant’s case. Counsel for the respondent then addressed the judge on the matters specified in s 104U of the Corrections Act. As counsel did so, the judge put to counsel some of the matters that were sought to be relied on by the applicant in response to the application. At the conclusion of counsel’s submissions, the applicant then commenced submissions before the judge. In the course of those submissions, the judge sought to direct the applicant to the relevant points, which he needed to establish, in order to sustain his contention. For example, he outlined to the applicant his understanding of the submissions made by the applicant. He also advised the applicant that if he wished to rely on something that Ms Schilling had said outside court, it would be necessary for her to provide an affidavit to that effect.
At the conclusion of the applicant’s submissions, counsel for the respondent then made further submissions. The judge then raised some of those matters with the applicant, and gave him an opportunity to respond.
On the second hearing date, 26 March 2024, the judge commenced by noting that he had received correspondence from the applicant, asking him to approve the Deed. Accordingly, the judge commenced by clarifying the position that the applicant was taking in respect of the Deed. The applicant’s response to that question was not clear. The judge persisted, and, by doing so, clarified that the applicant did want to have the deed set aside. The judge also noted that Ms Schilling had provided an affidavit, and he confirmed with the applicant that he wished to rely on it.
Counsel for the respondent then submitted that the applicant’s summons, that the Deed be set aside for non-compliance, was ‘not competent’. The judge disagreed with that submission. He noted the applicant’s contention that he had entered into the Deed in circumstances in which he was materially misled about its content. Counsel for the respondent submitted that the applicant would need to commence a separate proceeding on the extent that he was relying on the proposition that on his interpretation of the terms of the Deed, it was not being complied with. The judge gave that proposition short shrift, advising counsel that it would be ‘an outrageous and egregious misuse of public moneys’ if the applicant were required to proceed in that way.
Following further discussion with counsel for the respondent, the judge then asked the applicant if there were matters from the previous hearing on 7 March that he wished to expand on, in view of matters that he had considered since that date, or based on Ms Schilling’s affidavit. At the applicant’s request, the judge granted him a short adjournment to enable him to gather his thoughts. When the matter resumed, the applicant made a number of submissions to the judge. In the course of those submissions, the judge asked the applicant some relevant questions, which the applicant needed to address in order to sustain his case. For example, the judge noted that Ms Schilling’s affidavit was to the effect that she had been successful in her advocacy on the applicant’s behalf by having clause 2.3 removed. In that context, the judge discussed with the applicant the issue relating to his capacity to obtain appropriate advice from Ms Schilling concerning the proposed Deed of Settlement.
Counsel for the respondent then made submissions to the judge. At the conclusion of those submissions, the judge gave the applicant an opportunity to reply to them.
It is quite evident, from the foregoing summary of the two oral hearings, that the judge complied appropriately with the principles that apply to the conduct of a hearing involving a self-represented party. The applicant was given an appropriate opportunity to address the judge. His Honour sufficiently directed the applicant to matters, which he needed to address. The conduct of those two oral hearings by the judge could not form the basis of any arguable proposition that, in hearing and determining the respondent’s application for approval of the Settlement Deed, the judge was either affected by actual bias, or that his Honour conducted himself in a manner, which gave rise to an appearance of bias. Nor did his Honour’s conduct of those two oral hearings in any way support or act to the matters that had been advanced by the applicant on the other two bases on which the applicant has relied in support of grounds 1 to 4 of the proposed grounds of appeal.

In conclusion, then, for the reasons that I have discussed, I am not persuaded that proposed grounds 1 to 4 of the application for leave to appeal have a ‘real’, as opposed to a ‘fanciful’, prospect of success. Accordingly, I do not grant the applicant leave to appeal on those four grounds.

Second ground (ground 5)

Ground 5 is directed to the passage in the judge’s reasons, which noted that, after the applicant received Ms Schilling’s letter dated 25 January 2024, he did not further engage with her. In that passage, the judge stated:
The plaintiff did not seek to engage further with Ms Schilling. I am satisfied that his decision to not do so was his and one freely made. Even though the plaintiff wrote to the VGSO on 31 January 2024, claiming that he was no longer in a position to communicate with Ms Schilling, I do not accept that had he wanted to do so, he could not have requested a further telephone conference with her, at the very least.[62]
[62]Ibid [108].
In support of ground 5, the applicant submitted that it was unreasonable for the judge to conclude that he had received sufficient and proper legal advice before he signed the Deed on 7 February 2024.
The applicant noted that, on previous occasions when he had contact with Power & Bennett Lawyers, and, in particular, Ms Schilling, during 2020, his correspondence with his lawyers had been illegally opened by officers of the prison, in breach of s 47(1)(m)(iii) of the Corrections Act. The applicant submitted that, as a consequence, he had been forced to cease communications with his lawyers. Thereafter, the only contact he had with Power & Bennett was to include clause 5.1(c) of the Deed, in which the respondent allocated $2,400 for him to receive independent legal advice on the Deed before it was endorsed. The applicant further noted that his conference call with Ms Schilling on 23 January 2024 was also compromised, so that he was only able to speak with her for the reduced time of 20 minutes.
The applicant contended that he had experienced ‘ongoing harassment’ at the hands of the respondent, as each letter, that had been sent to him by Power & Bennett Lawyers, had been opened by the respondent in breach of s 47(1)(m)(iii) of the Corrections Act. The applicant noted that the two proceedings for contempt, that he had commenced, concerned the conduct of prison officials in intercepting and opening correspondence that had been sent to him by his legal practitioners.
The applicant contended that, at the judicial mediation, counsel for the respondent had informed Judge Brookes that she was concerned that the complexities of the terms of the Deed might not be properly comprehended by the applicant, as he lacked the requisite legal knowledge and skills to fully understand them. The applicant submitted that his need to receive appropriate legal advice, concerning the contents of the Deed, was recognised by the inclusion of clause 5.1(c) in the Deed, which acknowledged that the respondent had provided $2,400 to meet the applicant’s costs of receiving such independent legal advice as to the nature, effect, and extent of the Deed.
The applicant reiterated that his only telephone call to Ms Schilling was on 23 January 2024, and it was limited to 20 minutes. In addition, the letter, that Ms Schilling wrote to him on 25 January 2024, was not received by him until 31 January 2024, and only after he had demanded that it be provided to him. The applicant repeated that those acts, and the ongoing infringements of his rights, had caused him to cease to attempt to obtain legal advice about the Deed as and from 31 January 2024.
In those circumstances, it was submitted that it was not reasonable for Judge Ginnane to find that the applicant had received appropriate or adequate legal advice, or that he had had a full and proper opportunity to obtain such advice, before he executed the Deed.
In support of those submissions, the applicant referred to the comment by Martin J in Fyfe v State of South Australia,[63] in which his Honour noted that prisoners are in a position of particular disadvantage, and any abuse of power by prison authorities is unacceptable and can often have serious ramifications.[64]
[63][2000] SASC 84.
[64]Ibid [18].
The applicant further submitted that, if he had received appropriate legal advice, he would not have approved the terms in which clause 2.1(e) of the Deed was drafted. The applicant contended that, at the time that he had the opportunity to speak to Ms Schilling, his focus was directed to the proposed clause 2.3 in the Deed, which would have adversely affected his ability to organise appointments and obtain treatment by external medical providers. At the time, that point was of some substance for him, since he was then attending cardiac medical appointments in preparation for intended cardiac surgery.
In response, counsel for the respondent submitted that the judge gave detailed and extensive consideration to the chronology of events relating to the applicant’s access to legal advice. The judge rejected the assertion, by the applicant, that he had been unable to obtain legal advice, or that the delay in the delivery of a letter had caused him to cease what would otherwise have been further contact with his lawyer.[65] It was submitted that those findings were open on the evidence, including the affidavit evidence of both the applicant and Ms Schilling, and the chronology of correspondence that passed between the applicant and the respondent, which demonstrated the circumstances in which the Deed came to be executed on 7 February 2024.
[65]Reasons, [107]–[109].
Counsel noted that, in a letter written by the applicant to the VGSO on 30 November 2023, the applicant stated that he did not propose then to use the $2,400 that was available for his legal costs, as it was ‘unnecessary and a waste of funds’, as he was ‘grasping all aspects of the Deed’. In the same letter, the applicant requested a number of changes and amendments to be made to the proposed Deed.
Counsel further noted that, when the applicant did consider that he required legal advice, he was able to avail himself of the services of Ms Schilling. In that respect, Ms Schilling, despite some delay, was able to have a conference with the applicant on 23 January 2024, and, on the following day, she obtained a copy of the Deed from the applicant. On 25 January 2024, Ms Schilling wrote a letter to the VGSO, seeking the deletion of proposed clause 2.3, and inviting the VGSO to send the revised documents directly to the applicant. Counsel noted that the only delay that occurred at that time was in the applicant receiving a copy of the letter, which Ms Schilling had sent to the VGSO. Otherwise, the applicant received all other relevant correspondence that passed between the parties at that time.
In those circumstances, counsel submitted that the judge was justified in rejecting the contention, by the applicant, that, by reason of the delay in the provision to him of the letter, which Ms Schilling had sent to VGSO, he was in some way prevented from obtaining further legal advice concerning the Deed, if he had elected to do so.[66]
[66]Reasons, [107].
In that respect, counsel noted that, in her affidavit, Ms Schilling did not depose to any inability or difficulty obtaining instructions from the applicant, or giving appropriate advice to him.
Counsel further submitted that the judge was justified in concluding that the applicant sufficiently understood the Deed. In particular, in his letter to VGSO dated 5 February 2024, the applicant specifically referred to his requirement, that clause 2.3 be removed from the Deed. Counsel submitted that the applicant’s conduct in that respect, and in other respects, demonstrated that he had sufficient opportunities to review the Deed himself, and to determine whether the terms in which clause 2.1(e) was drafted were satisfactory. Counsel also noted that the applicant had conducted detailed negotiations with VGSO, in which he had demonstrated that he had the ability to pay close attention to the details that were contained in the Deed.
Accordingly, counsel submitted, the judge did not err in considering that the applicant’s decision, not to engage further with Ms Schilling after 25 January 2024, was freely made by him.

Second ground (ground 5) — analysis and conclusion

The issue, raised by ground 5, is whether the judge was correct to conclude that the applicant had received sufficient and proper legal advice before he signed the Deed on 7 February 2024.
That question was determined by the judge, based on the affidavits of Mr Hocking, the applicant, and Ms Schilling, and the documents and other materials exhibited to those affidavits. The witnesses were not cross-examined. In those circumstances, this Court is in as good a position as the trial judge to determine the question, to which ground 5 is directed. In deciding that question, the appellate court must give appropriate respect and weight to the conclusion of the primary judge, but, once having reached its own conclusion, it must determine the proposed ground of appeal accordingly.[67]
[67]Warren v Coombes (1979) 142 CLR 531, 551 (Gibbs ACJ, Jacobs and Murphy JJ); Fox v Percy (2003) 214 CLR 118, 125–6 [23] (Gleeson CJ, Gummow and Kirby JJ); Lee v Lee (2019) 266 CLR 129, 148–9 [55] (Bell, Gageler, Nettle and Edelman JJ).
In considering ground 5, four points are relevant in determining whether the judge erred in concluding that the applicant had sufficient legal advice before he signed the Deed on 7 February 2024.
First, in the mediation that took place in November 2023, and in ensuing negotiations that occurred after the mediation, it is apparent that the applicant was able to negotiate the inclusion in the Settlement Deed of a number of detailed points, which were of concern to him.
Secondly, in the course of those negotiations, the applicant requested, and received, legal advice at the point at which he felt that it was necessary to do so.
Thirdly, it is not evident that the conduct of the prison authorities was such as to preclude the applicant from receiving further legal advice before he signed the Settlement Deed on 7 February 2024.
Fourthly, the point, that resulted in the dispute that is currently before the Court — the content of clause 2.1(e) of the Deed — was, of itself, not a matter on which it would have been necessary for the applicant to receive legal advice.
Without rehearsing the whole of the background negotiations, it is relevant to summarise some of them in order to give proper consideration to the matters raised in respect of ground 5.
The starting point was the mediation, which took place on three days in November 2023, and concluded on 17 November 2023. The draft Deed, that the VGSO sent to the applicant on 21 November, reflected that, at the mediation, the applicant had, over the course of the three days, negotiated a number of entitlements, which he considered to be important to him. They included the following:
•payment of the sum of $22,100 (in the first draft Deed described as ‘general damages’), together with $4,000 for reimbursement of ‘incidental costs’;
•payment of $9,350 for the applicant’s legal costs of the proceeding in the County Court to date;
•continued access to the applicant’s in-cell computer;
•continued access to the use of a sandwich press in the cell (clause 2.1(e));
•two direct escorts from prison for the applicant’s forthcoming cardiac medical appointments, and an additional direct escort for the cardiac surgery;
•the State would take all reasonable steps to ensure that, on completion of the cardiac surgery, the applicant would be able to return to Barwon Prison (and not Port Phillip Prison);
•if the applicant were required to be accommodated at Port Phillip Prison following surgery, he would be provided with particular items that he was currently receiving at Barwon Prison (namely, 14 packets of sardines; a garden salad for lunch each day; a dinner plate containing two potatoes, two tomatoes, one onion, and two bananas each evening);
•if the applicant was required to be accommodated at St John’s at Port Phillip Prison before his surgery, and following his discharge from hospital, the State would ensure that he was permitted to have an electric kettle and was able to purchase eggs and noodles;
•the State would ensure the applicant’s continued entitlement to cotton and wool clothing;
•the ‘State parties’ would provide $2,400 to meet the legal costs of receiving independent advice relating to the Deed.
In the following two months, the applicant then negotiated with the VGSO, in some detail, concerning a number of the aspects of the Deed.
On 28 November 2023, he wrote a letter to the VGSO, concerning particular items, including:
•payment of his legal costs by the State directly to the applicant’s lawyers;
•refund of incidental costs involving legal advice to date;
•future medical costs;
•the ability of the applicant to undergo private psychological sessions;
•the applicant’s requirement to be allocated a blender, Birko jug, sandwich press and frypan;
•the applicant’s computer and associated accessories would remain in the possession of the applicant ‘in perpetuity’;
•the provision of escort for the implanting of a ‘loop monitor device’ that would precede the applicant’s cardiac surgery.
In a further letter dated 30 November, the applicant addressed particular aspects of the proposed Deed. They included:
•that the sum of $22,100 should be described as being paid for medical expenses (and not as damages);
•a reformulation of the proposed clause relating to the applicant’s right to his in-cell computer;
•(addressing clause 2.1(e)) that the State would ensure that the applicant had continued access to a sandwich press, frypan, Birko jug, and blender in the cell in which he was housed.
In the letter, the applicant also stated that he did not then propose to use the $2,400 offered to him for legal advice, because he considered it to be ‘unnecessary and a waste of public funds’, as he was ‘grasping all aspects of the Deed’.
Following those communications by the applicant, the VGSO forwarded to the applicant an amended Deed on 7 December 2023, containing the amended clause 2.1(e), to which I have referred.
Further correspondence took place between the parties. In a letter dated 12 December 2023, the applicant insisted that the sum of $22,000, which was described in the proposed Deed as being ‘by way of general damages’, be described as being payment in respect of present and ongoing medical expenses. I interpolate that that point was of some significance, in view of the provisions of the Corrections Act (s 104V and s 104W), which quarantines awards of damages received by a prisoner, and which may be used in payment of compensation to victims.
In a letter dated 13 December 2023, the applicant discussed further aspects of the Deed, including his requirement for a direct escort for the implanting of the loop monitor. The applicant noted that the Deed, as presently drafted, provided for escorts for him to undergo cardiac surgery, but he expressed concern that the insertion of the loop monitor would not be comprehended within that description.
Further correspondence took place in which the parties discussed (among other matters) that requirement.
On 16 January 2024, the VGSO forwarded a further letter to the applicant, enclosing a revised version of the Deed. Significantly, clause 2.1(c) of the Deed provided that the State would pay the applicant the sum of $22,100 ‘by way of future medical expenses’, together with $4,000 for reimbursement of incidental costs, and $9,350 for the applicant’s legal costs of the proceedings to date. The agreement, by the State, that the sum of $22,100 be described as payment for future medical expenses, rather than general damages, was, of course, a matter of importance (and benefit) for the applicant. The proposed Deed also included clause 2.1(e) in its current form (which did not expressly provide for the applicant to have a frypan in his cell), and a proposed clause 2.3 (in which it was acknowledged that the State could make no guarantee to facilitate and/or organise appointments and/or treatment by external medical providers in relation to the settlement amount).
It was at that point that the applicant then sought, and obtained, legal advice from Ms Schilling of Power & Bennett Lawyers.
Accordingly, on 23 January 2024, the applicant had a telephone conference with Ms Schilling. There were apparently technical difficulties in establishing a connection between Ms Schilling and the applicant, with the result that the conference was confined to 20 minutes. After the conference, Ms Schilling, with the approval of the applicant, sent a letter to VGSO on 25 January, objecting to the inclusion of clause 2.3 in the Deed. I have earlier summarised the correspondence that took place between the parties.[68]
[68]Above, [18]–[21].
The applicant did not seek further legal advice from Ms Schilling after he received a copy of that letter (on 31 January 2024).
In her affidavit, Ms Schilling detailed each of the communications that she had with the applicant and with VGSO. Certainly, there were some difficulties in her providing to the applicant copies of draft letters and the like, which difficulties appear to have been caused by quite rigid bureaucratic requirements of Barwon Prison. However, notwithstanding those difficulties, Ms Schilling was able to obtain appropriate instructions from the applicant concerning the Deed, and to convey her instructions to VGSO. As a result, the proposed clause 2.3 was removed from the Deed, and was not included in the Deed that was ultimately signed by the applicant on 7 February.
In submissions on the present application, the applicant insisted that he ceased to have any further discussion with Ms Schilling after 25 January 2024, because of his concern that his communications with his solicitor were being intercepted by prison authorities.
While the applicant himself might have felt that that was so, nevertheless, there is no evidence that was before the judge, which would support a conclusion that there was conduct by the Barwon Prison authorities, which would have precluded the applicant from seeking legal advice, if he had desired to receive it. Apart from the issue, relating to the provision of a frypan to the applicant in his cell, each of the other terms in the Deed have subsequently been uncontroversial, and a number of them reflected matters that had been specifically negotiated by the applicant.
In summary then, it is quite evident that the applicant, both during and after the mediation, was able to negotiate for himself the inclusion of a number of important matters in the Deed that protected his rights, and which made appropriate provision for him. The applicant sought, and received, appropriate legal advice from Ms Schilling when he considered it was necessary to do so. As I have discussed, there is no evidence, which would support a finding that conduct by the Barwon Prison authorities had been such as to deter or dissuade the applicant from seeking further legal advice between 25 January 2024 and 7 February 2024, when he signed the Deed.
In addition, if the applicant had sought further legal advice, it is not evident that the Deed, ultimately executed by him, would have been in any different form. The content of clause 2.1(e) was not complex. On a plain reading of it, that clause requires that the applicant have in his cell a sandwich press, Birko jug and blender, and that he have continued access to those items and also to a frypan at any prison facility in which he was incarcerated that can safely accommodate those items during the time he was in custody. The applicant had already, without legal advice, taken exception to an earlier version of clause 2.1(e), which had led to its redrafting in the proposed Deed that was forwarded to him on 7 December 2023. It may be fairly assumed that the applicant did have occasion and the capacity to read and absorb the contents of the redrafted clause 2.1(e). In his negotiations with the respondent, he had demonstrated a real capacity to analyse the Deed, and to highlight points, which he considered required reformulation. There was nothing complex or abstruse in the manner in which clause 2.1(e) was ultimately formulated, that would have required the applicant to seek or obtain legal advice about its content.

Taking those matters into account, it is, I consider, clear that the trial judge was correct to conclude that the applicant had received sufficient and proper legal advice before he signed the Deed on 7 February 2024. I am not persuaded that proposed ground 5 of the application for leave to appeal has a real, as opposed to a fanciful, prospect of success. Accordingly, I do not grant the applicant leave to appeal on proposed ground 5.

Third ground (ground 6) — submissions

Ground 6, in effect, contends that there was a failure of procedural fairness in the processes that led to the signing of the Deed.
In oral argument, the applicant did not advance any separate submissions in support of ground 6. In his written case, the applicant submitted that the judge had failed to consider his contention that counsel for the respondent, in the course of the mediation process, had inappropriately ‘run down the clock’, thus depriving the applicant of the protections of that process. The applicant noted that, following the mediation, his position as to the content of the agreement reached at the mediation did not change. Accordingly, it was submitted, the judge erred in holding that the parties did not, at the mediation, reach a concluded agreement.[69] The applicant noted that he never changed the terms that he was offered at the mediation, and, thus, the judge erred in considering that further negotiations did take place. The only issue, that arose during that period, was the inclusion by the respondent in the draft Deed of clause 2.3, which would have deprived the applicant of his rights under s 47(1)(f) of the Corrections Act. The applicant emphasised that, during the time between the mediation and the signing of the Deed, he had, at all times, acted on the basis that the terms, that were agreed at the mediation, would be included in the agreement.
[69]Reasons, [20]–[21].
The applicant again referred to the circumstance that, in the period between the mediation and the signing of the Deed, he only had the opportunity to speak with Ms Schilling in one 20 minute telephone call on 23 January 2024. The applicant also noted that he has had ongoing issues with his computer, which rendered his task, in engaging in the communications that took place before the Deed, ‘difficult’.
In response, in its written submissions, the respondent submitted that there was no evidence before Judge Ginnane that the respondent had deliberately acted to delay the negotiations in the mediation to prevent the matter returning before Judge Brookes.
The respondent noted that the judge gave careful consideration to whether past concerns, about how correspondence between the parties was treated, had influenced the applicant’s decisions in relation to the Deed, and as to whether the respondent had misled the applicant concerning the part of the Deed that related to his right of access to a frypan. The respondent also noted that the judge gave consideration to the applicant’s position as a self-represented litigant and to his capacity to represent himself as such.

Ground 6 — analysis and conclusion

In considering ground 6, the starting point is that there was no evidence adduced before the trial judge that the respondent had deliberately wasted time, or delayed negotiations, in the mediation. Further, it is not evident how the applicant was at all disadvantaged because the mediation process did not continue.
In particular, the applicant has not demonstrated how a continuation of the mediation process would have, in some way, benefited him. It is quite clear, from the contents of the Deed of Settlement that was signed by the parties, that it was necessary that the detailed items, that were the subject of discussion between the parties, be formulated in writing and contained in a written agreement. That process necessarily was required to be undertaken after the conclusion of the mediation.
The process of formulation of the Deed clearly required further negotiation between the parties, particularly as to the precise content of a number of the clauses, which were included in it for the benefit of the applicant. In the course of that process, the applicant, in a number of respects, insisted on a particular formulation of some matters contained in the Deed.
As the matters that I have discussed in considering ground 5 make clear, it is quite apparent that, in the course of the negotiations, the applicant was sufficiently capable of advocating for his interests, and of protecting those interests. Further, as I have discussed, the evidence that was before the trial judge does not demonstrate that the conduct of the respondent in some way prevented or precluded him from seeking legal advice when he considered it necessary to do so.
For those reasons, the applicant has not demonstrated that he would have a real, as opposed to fanciful, prospect of success under ground 6. Accordingly, leave to appeal in respect of ground 6 is refused.

Summary of conclusions

For the foregoing reasons, the applicant has not demonstrated that any of the proposed grounds of appeal, relied on by him, have a real, as distinct from fanciful, prospect of success. It follows that the application for leave to appeal the judgment and order of Judge Ginnane of the County Court dated 20 May 2024 must be refused.

[2024] VSCA 327

20 December 2024