Brazel v State of Victoria (Ruling)
[2022] VCC 2008
| IN THE COUNTY COURT OF VICTORIA AT Melbourne COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
General List
Case No. CI-13-03868
| GREGORY BRAZEL | Plaintiff |
| v | |
| STATE OF VICTORIA | Defendant |
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JUDGE: | HIS HONOUR JUDGE GINNANE | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 19 July 2022 | |
DATE OF RULING: | 29 November 2022 | |
CASE MAY BE CITED AS: | Brazel v State of Victoria (Ruling) | |
MEDIUM NEUTRAL CITATION: | [2022] VCC 2008 | |
RULING
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Subject:RULES AND PROCEDURES
Catchwords: Bias Application
Legislation Cited: Crown Proceedings Act 1958 (Vic); Civil Procedure Act 2010
Cases Cited:Johnson v Johnson (2000) 201 CLR 488; Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337; Michael Wilson & Partners Ltd v Nicholls (2011) 244 CLR 427; Charisteas v Charisteas (2021) 393 ALR 389; British American Tobacco Australia Services Ltd v Laurie (2011) 242 CLR 283; Slavin v Owners Corporation Strata Plan 16857 [2006] NSWCA 71; Barakat v Goritsas (No 2) [2012] NSWCA 36; Isbester v Knox City Council (2015) 255 CLR 135; Feldman v Nationwide News Pty Ltd (2020)103 NSWLR 307; Re JRL; Ex parte CJL; sub nom Renaud, Re; Ex parte CJL (ALJR) (1986) 161 CLR 342; Attorney-General (NSW) v Klewer [2003] NSWCA 295; Raybos Australia Pty Limited v Tectran Corporation Pty Ltd (1986) 6 NSWLR 272; Bakarich v Commonwealth Bank of Australia [2010] NSWCA 43
Ruling: Application dismissed.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | The Plaintiff appeared in person | |
| For the Defendant | Ms R Ellyard | Victorian Government Solicitors Office |
HIS HONOUR:
1The plaintiff makes application that I disqualify myself from further conduct of his proceedings. He does so on the basis of either actual or apprehended bias. He submits that this issue should be determined preliminary to the determination of his summons for contempt that he has on foot and the further progress by means of necessary directions for the conduct of his main proceeding for damages.
2The gravamen of the plaintiff’s application is that, in the course of a hearing related to the progress of his proceedings, I made laudatory comments about the character of a solicitor who, for a considerable period of time, including prior to me taking over conduct of the proceedings from a former judge of this Court, had the conduct of the proceeding on behalf of the Victorian Government Solicitors Office (“the VGSO”). Over the course of hearings associated with the plaintiff’s proceeding, he made a number of allegations concerning that solicitor’s professional probity in dealing with him as well as her compliance with the provision of documents to him in accordance with directions that had been made by the Court from time to time in regard to the proceeding. On 15 October 2020, after having heard matters of complaint that the plaintiff had brought to the Court's attention, the solicitor in question and who appeared for the State of Victoria said that she took umbrage at matters that had been put against her by the plaintiff in regard to her behaviour and conduct. In the course of addressing the matter, I said the following:[1]
“Yes, I have said certainly very early on in this proceeding that - and people can - Mr Brazel can - if Ms Shilling in due course wants to be heard any further about it - I've had professional in-court dealings with Ms Coombs for years in a variety of matters, and it would take considerable persuasion on anybody's part to satisfy me that Ms Coombs would ever act unethically or unlawfully for any intentional purpose.”
[1] Transcript (“T”) 40, Lines (“L”) 2-9.
3It is apparent to me that the comment should not have been expressed in the manner it was. It would have been appropriate, given the plaintiff’s self-represented status, for me, once having made the disclosure that I had known Ms Coombs professionally for many years, to have explained in explicit terms to the plaintiff that, if he wished, he was at liberty to make an application that I disqualify myself from any further conduct of the proceeding. My language alluded to this but I expect it was elliptical.
Background
4In order to appreciate the circumstances surrounding the plaintiff’s application, it is helpful for me to set out some background.
5The plaintiff’s common law proceeding concerns injuries he allegedly sustained while an inmate at Barwon Prison. The Defence to the proceeding has been conducted by the VGSO on behalf of the State of Victoria, as the proper defendant, pursuant to the Crown Proceedings Act 1958 (Vic).
6The plaintiff is a self-represented litigant, but has had access to legal advice on occasions, and had a solicitor, Ms Schilling, attend to observe matters and who has been heard by regarding certain problems the plaintiff has experienced in the provision of communications between him and her. The plaintiff has told the Court that ultimately he intends to be legally represented at the trial of the proceeding. Despite the plaintiff’s self-represented status, there is no doubt that he is an intelligent and astute man who has accumulated significant legal knowledge over the course of his involvement in the justice system.
7The progress of the plaintiff’s common law proceeding has been glacial. It has been managed by several judges of the Court through the Court’s dedicated Self-Represented Litigants List. A recurring matter of concern raised by the plaintiff has been what he considers to be efforts by prison management intended to frustrate his conduct of the proceedings. In this Court, he has raised complaints before his Honour Judge Saccardo and subsequently before me. His Honour Judge Saccardo made orders from time to time intended to remedy the plaintiff’s complaints, in particular, concerning the provision to him of transcripts, and the treatment of his mail. Those orders have by and large proved fruitless in eliminating complaints by the plaintiff of interference.
8The plaintiff has complained that his access to mail, and the ability to undertake necessary legal research and to communicate with legal advisers, has been frustrated by those under whose control he falls in the Corrections’ system.
9Judge Saccardo had reason to craft orders to ensure the management of Barwon Prison did not unduly interfere with the plaintiff’s access to mail. I too have made orders with the aim of addressing the plaintiff’s complaints. I have also voiced my frustration at the apparent failures by those in control of Barwon Prison, in particular, to give effect to the orders of this Court, and I have also previously expressed, in open court, that the errors that have occurred are unacceptable. Yet they persisted.
10Prior to my comments made on 15 October 2020 upon which the plaintiff’s application rests, and on 27 August 2020, I gave directions to determine the plaintiff’s complaint made in May 2020 concerning an alleged unlawful opening of his prison mail. My directions included a requirement that certain prison officers make affidavits detailing the circumstances of the alleged interference with the plaintiff’s mail and I listed the matter to return to Court before me on 15 October 2020. I made orders that were intended to ensure a fair balance as between the plaintiff’s rights and the responsibilities of prison authorities in the management of their responsibilities.
11Returning to the events on 15 October 2020, I gave directions and foreshadowed that, in the event the plaintiff proceeded to commence proceedings for contempt against the State of Victoria and/or others, that further directions would be required to progress that matter. As part of the hearing on 15 October 2020, I made orders to protect the privacy of correspondence the plaintiff intended to send to a solicitor, Ms Schilling, by declaring the same to be exempt mail. Ms Schilling is the solicitor to whom mention was made by me in the transcript of my comments.
The 3 December 2020 Summons for Contempt
12On 26 October 2020, I extended the time for any orders sought for contempt to 30 days after the provision of transcript to the plaintiff.
13On 3 December 2020, the plaintiff filed a summons for contempt. Following the filing of his summons, the plaintiff brought to the attention of the Court further matters of complaint about conduct he said he was subjected to in the prison environment.
14On 8 December 2020, I made orders for response material to be filed before 25 January 2021 and listed the Summons for hearing on 24 February 2021. I also acceded to a request by the plaintiff for an extension of time for hearing of his summons until 24 March 2021, and I made orders requiring the plaintiff to identify the persons upon whom he sought the issue of a subpoena to give evidence at the hearing of his summons, and for the provision of any objections to the same, and for the plaintiff to make any further submissions in support of his alleged contempt. I made the Summons returnable on 10 June 2021.
15On 2 June 2021, I made certain further orders permitting the filing by the plaintiff of a further affidavit in support of his summons for contempt and I extended the time for the defendant to file any further submissions in answer to the further submission the plaintiff had filed, and dated, 15 May 2021. I adjourned the summons to 19 July 2021.
16On 14 July 2021, I made an order in chambers adjourning the summons to 19 August 2021.
17On 12 August 2021 I made an order in chambers adjourning the summons to 22 September 2021, due to the ongoing government lockdown.
18On 8 September 2021 I made an order in chambers adjourning the summons to 27 October 21 due to the continuing government lockdown.
19On 20 October 2021, the plaintiff requested an adjournment of the hearing of the Summons until a date after 10 November 2021, due to delays in him receiving COVID vaccination. I relisted the Summons for 15 February 2022.
20By letter dated 13 February 2022, and because of the provision of affidavit material filed by Officer Thompson, the plaintiff sought, and I granted to him, the opportunity to file an affidavit in response, and the Summons for Contempt was refixed for 19 July 2022.
21The three principal issues of concern the plaintiff has relied on in support of his summons for contempt has been the late or non-provision of transcript; the interference with his mail and the alleged destruction of a USB stick.
22Throughout the management of the plaintiff’s proceeding, I have, on more than one occasion, had reason to criticise the failure of the provision of transcript to the plaintiff by the VGSO and said that, if the issue persisted, I would require the attendance before me in Court of the general manager of the prison, or proper officer, to explain the matter.
23As to the treatment of the plaintiff’s mail, the prison authorities accepted, on a number of occasions, that an interference with the plaintiff’s mail had occurred contrary to directions I made, but they relied on the interference as inadvertent. Inadvertence will not invariably shield conduct from amounting to a contempt, but it may be relevant to the nature and extent of any penalty to be imposed in the event of a finding of contempt. Generally speaking, it is a civil contempt to refuse to do an act required by a judgment or order of a court, or to disobey an order requiring a person to abstain from doing a specified act in breach of an undertaking given to a court by a person.
24It is understandable that the plaintiff, having heard me make the comments I did about the former solicitor with the conduct of the proceedings, might consider, what he regards as, a failure by me to have peremptorily sanctioned her, or not take some form of summary disciplinary action in response to his complaints about her, as having disclosed a favourable disposition to her and/or to the VGSO, and/or any client it represented, and to have formed an unfavourable disposition to him.
25Against this background, a reasonable person would, however, take into account the following additional facts. I accommodated the progress of the plaintiff’s Summons for Contempt with the aim of ensuring that any sanction that might arise was properly identified by reference to conduct that occurred in alleged contravention of specific court orders. Other conduct referred to by the plaintiff that might amount to an unjust interference in, or hindrance to, his capacity to conduct the proceeding, might have other repercussions under, for example, the Civil Procedure Act 2010, but not be in breach of an order of the Court, and so not amount to a contempt but, if proved, warrant sanction by the Court.
26I have maintained the position that it is in the interests of justice and so as to enable a proper hearing of the plaintiff’s Summons for Contempt, for it to proceed to a hearing in person in open court and not remotely. I have adopted this position to ensure the plaintiff is afforded the necessary time needed to prosecute his application and is not hampered by the administrative difficulties and time restrictions, and often unreliable connections, that he has faced in the past when appearing remotely from Barwon. It was not possible to accommodate this throughout the period of the State Government imposed lockdowns. As circumstances associated with COVID have relaxed to some degree in the general community, there has persisted complexities associated with the transportation of prisoners to and from court hearings while COVID infections have continued to present disproportionately in the prison population.
The disqualification application
27I 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[2] and the various authorities cited therein have like application here.
[2] [2010] NSWCA 43.
28The question is whether the circumstances of my prior dealings and the comments I made amounts to apprehended bias. The test for determining whether a judge should disqualify himself or herself by reason of apprehended bias is objective and it is:
“… whether a fair-minded lay observer might reasonably apprehend that the judge might not bring an impartial and unprejudiced mind to the resolution of the question the judge is required to decide.[3]
(Footnote omitted.)
[3]Johnson v Johnson (2000) 201 CLR 488 at [11], affirmed in Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337 (“Ebner”); applied in Michael Wilson & Partners Ltd v Nicholls (2011) 244 CLR 427 and Charisteas v Charisteas (2021) 393 ALR 389 (“Charisteas”); distinguished in British American Tobacco Australia Services Ltd v Laurie (2011) 242 CLR 283; see also Slavin v Owners Corporation Strata Plan 16857 [2006] NSWCA 71; Barakat v Goritsas (No 2) [2012] NSWCA 36 and Isbester v Knox City Council (2015) 255 CLR 135.
29The resolution of the relevant question referred to, is not to be assessed with the benefit of hindsight, but at the time of the event or events said to give rise to that possibility in the first place.[4]
[4] Feldman v Nationwide News Pty Ltd (2020)103 NSWLR 307 at [41]-[43] (citing Ebner at [7]-[9], [33]).
30The application of the test requires a consideration of two steps: First, “it requires the identification of what it is said might lead a judge ... to decide a case other than on its legal and factual merits”; and second, there must be articulated a “logical connection” between that matter and the feared departure from the judge deciding the case on its merits.[5] Once those two steps have been taken, the reasonableness of the asserted apprehension of bias can then ultimately be assessed.[6]
[5] Ebner at [8].
[6] Ebner at [8]; Charisteas at [11].
31Ultimately, Judges are required to discharge their professional duties unless disqualified by law. They should not accede too readily to applications for disqualification, otherwise litigants may succeed in effectively influencing the choice of judge in their own cause.[7]
[7]See Re JRL; Ex parte CJL; sub nom Renaud, Re; Ex parte CJL (ALJR) (1986) 161 CLR 342 at 352; Attorney-General (NSW) v Klewer [2003] NSWCA 295; Ebner at [19]-[23]; and Raybos Australia Pty Limited v Tectran Corporation Pty Ltd (1986) 6 NSWLR 272.
Distillation and consideration of discretionary considerations
32In my view, the importance of a judge not acceding too readily to an application to disqualify, is important in the range of discretionary considerations that should inform the determination of such an application as this. The practical reality is that, in the event I acceded to the application, then the hearing and determination of the plaintiff’s Summons for Contempt would need to be heard by another judge and require him or her to determine a possible contempt in the face of orders made by me, and against a very substantial factual background extending back a number of years, and that has involved a number of judges.
33I further note that the solicitor from the VGSO, about whom I made the favourable comment, no longer has carriage of the proceedings, and based on what I was told from the Bar table by counsel for the defendant, no longer employed by the VGSO.
34I refer to, and have taken into account, as well of these further matters. On 10 May 2021, in response to the plaintiff’s complaint that he had not received transcript of directions hearings on 28 May 2020 and 15 October 2020, the Court provided them to him. In addition, on my direction, I ordered that nine other transcripts be provided to the plaintiff. I ordered an affidavit be made by the defendant explaining the failure by 3 June 2021. The affidavit was filed late on 11 June 2021. The affidavit offered a form of explanation, but was less than fulsome. I also, that day, directed that a copy of all principal legal authorities that the State of Victoria may rely on at the hearing of the plaintiff’s Summons for Contempt be made available in hard copy to the plaintiff in advance of the hearing of his summons, to aid his preparation. I informed the parties that I was concerned by the expressed continuing failure of the plaintiff to be provided transcript, as previously ordered by the Court.
35Lastly, at the hearing of the plaintiff’s application for disqualification for bias on 19 July 2022, the following exchanges occurred between the Bench and the plaintiff. They are informative and have also helped me arrive at the ultimate disposition of this application. The plaintiff said as follows:
“PLAINTIFF:
Your Honour, I say this to you, there is no insult intended, and I'm sure no insult taken. I know Your Honour to be an honourable man, I know Your Honour's history, but there is a perceived bias that I believe is held by Your Honour, consciously or subconsciously, and the reason that the contentions go back to what Your Honour wrote in an email to me dated 1 July 2021 - sorry, 19 July, I believe it was. Sorry, 7 July.
HIS HONOUR:
Yes.
PLAINTIFF:
7 July, and I have nothing to add to what is written in the contentions.”[8]
[8] T3, L27-T4, L6.
36The plaintiff said further:
“The aspect of the contentions was not to criticise, insult, or otherwise disparage His Honour or the Honourable Court in any way whatsoever. For whatever reason, right or wrong, there is a perceived bias - a perception that there is a bias held by His Honour. The contentions have been brought to ask Your Honour to ask himself the question, does His Honour hold a bias? If His Honour said, ‘No, I don't’ would the level of respect for His Honour, and my personal belief that you are a man of integrity, I would accept that.
But I am required to put the contentions to Your Honour are based on the email of 7 July 2021 at 2.45 pm.
…
The raising of the contentions I bring to Your Honour's attention again. The raising of the contentions was purely and simply a matter that I felt was required to ask His Honour to self-govern.”[9]
[9]T6, L24 ꟷ T9, L28.
37Overall, I am satisfied that a fair-minded lay observer, having regard to all of the foregoing information, would not reasonably apprehend that I might not bring an impartial and unprejudiced mind to the resolution of the questions I am required to decide by reason of the impugned comments. I am not satisfied that the fair-minded lay observer would reasonably apprehend that I would not bring an impartial and unprejudiced mind to the hearing and determination of the plaintiff’s application seeking a finding of contempt and an imposition of penalties.
38For all the reasons expressed, I am not satisfied that it is appropriate that I disqualify myself from the further carriage of the plaintiff’s Summons for Contempt or in conduct of further directions to progress the plaintiff’s substantive proceeding to hearing.
39I will list the plaintiff’s Summons for Contempt together with main proceeding for further directions on 8 December 2022.
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