Brown v State of Victoria (Ruling)

[2024] VCC 1112

IN THE COUNTY COURT OF VICTORIA

AT MELBOURNE

COMMON LAW DIVISION

Revised
Not Restricted
Suitable for Publication

GENERAL LIST

Case No. CI-23-02495

ROHAN MICHAEL BROWN	Plaintiff
V
STATE OF VICTORIA	Defendant

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JUDGE:	HER HONOUR JUDGE MANOVA
WHERE HELD:	Melbourne
DATE OF HEARING:	24 July 2024 (Ex Tempore Ruling)
DATE OF RULING:	26 July 2024 (Reasons for Ruling revised in accordance with the principles in Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v AAM17 (2021) 388 ALR 257)
CASE MAY BE CITED AS:	Brown v State of Victoria (Ruling)
MEDIUM NEUTRAL CITATION:	[2024] VCC 1112

RULING
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Subject:APPLICATION FOR RECUSAL – APPREHENDED BIAS – ACTUAL BIAS

Catchwords:              Self-represented litigant – alleged mistakes of judicial officer – alleged failure to accommodate plaintiff’s autism - judge’s use of a textbook – judge’s power to recuse themselves and other judicial officers

Cases Cited:Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337; Edhouse & Edhouse (No 2) [2024] FedCFamC1A 111, Austin v Dwyer [2023] VSCA 227

Ruling:  Application refused

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	The plaintiff appeared in person
For the Defendant	Dr N Petrie	Victorian Government Solicitor’s Office

HER HONOUR:

1Mr Brown applies that I recuse myself on the basis of apprehended bias and actual bias[1].  There are six broad categories pursuant to which he framed his application.  These are as follows: 

I.mistakes I have made in my ruling made on 1 May 2024 with reasons published on 10 May 2024;

II.the mistakes I have made on other occasions which are consistently, every single time to his detriment, rather than to the detriment of the VGSO;

III.on 21 June 2024, when the matter was listed for consideration of the defendant's summons to strike out Mr Brown's pleading,  I had ambushed him (being an Autistic disabled person), by changing his expected course of how the submissions would be dealt with from the order in the submissions to an order under categories of objections.  This was asserted by Mr Brown to be a deliberate ambush of him.  Further, that the 11 categories lacked consistency, as Mr Brown considered items were missing from the categories which should have been included. 

IV.that I have referred to Fleming's Law of Torts (‘Fleming’) in court in relation to striking out a pleading which asserts that Debra Coombs was a public officer, and that I had failed to read out the whole paragraph of Fleming, and that I was wrong in my interpretation of the law regarding categories of public officers, and that I had entered the fray by raising the question whether Ms Coombs was a public officer when the VGSO had not raised it.  This last point can be readily disposed of.  The VGSO submissions for strike out raised the point and the VGSO submitted today that they did raise the issue in their submissions.  I accept that submission. 

V.striking out entire pleadings in respect of tort 22 and 41, under the mistaken apprehension that Mr Brown had consented to that course, when he had not.  This point can also be readily disposed of.  Mr Brown agreed (during his application for disqualification) that he had been provided by the court with a draft copy of strike-outs for his input as to whether they were reflective of his position, but he had failed to offer his input, as he had determined he was going to make an application for recusal instead.

[1]This is Mr Brown’s second application for disqualification, the first was made on 1 May 2024 and a ruling given ex tempore on that day. On 3 April 2024, Mr Brown demanded I recuse myself as I was “perverting”. This demand was not entertained and no ruling was given about it.

VI.failing to consider whether a minor change to a pleading, (deletion of words/a sentence in a paragraph) could accommodate his aim, rather than striking out the whole pleading.  This aspect can also be readily disposed of.  If Mr Brown considers my ruling was mistaken, he can appeal it.  In my view, there was nothing in his submission which gives rise to actual or apprehended bias, as a consequence of the order I have made. 

VII.making orders requiring Mr Brown to disclose names of individuals anonymised by the use of the word 'protected' in his current pleading, and failing to take into account his assertions that the VGSO were already aware of who those individuals were and were misleading the court when they say they were not aware.  This last point can also be readily disposed of. If Mr Brown considers there are mistakes in the orders I have made, he can appeal them.  There is nothing in this submission which I consider gives rise to actual or apprehended bias as a consequence of the order that I have made. 

2Mr Brown concluded his submissions by asking the court to disqualify all County Court judges and to bring in a judge from another jurisdiction. 

3The reason for this was said to be that over the years, all of his dealings with judges of this court have caused him to lack confidence in their ability to be impartial and to adequately consider all relevant matters.  Mr Brown was unable to point to any authority or power for such a course.  Further, Mr Brown indicated he had no confidence that any judicial officer from another jurisdiction would be fair and impartial in his case. 

4The test for apprehended bias is well settled. It is set out in Ebner v Official Trustee in Bankruptcy [2000] HCA 63, which I will refer to as ‘Ebner’.  A copy of that decision was provided to Mr Brown on Monday of this week (22 July 2024) following the receipt by the court of his notice of intent to make an application that I recuse myself, and in that application Mr Brown had not correctly cited the applicable authority. 

5The test in Ebner is as follows: 

A judge is disqualified if a fair-minded lay observer might reasonably apprehend that the judge might not bring an impartial mind to the resolution of the question the judge is required to decide[2].

[2][2000] HCA 63 at [33]

6In this case, the question I am required to decide is whether Mr Brown's pleadings can be sustained in their current form, whether they should be struck out or whether they can be sustained in another form and amended. 

7The ‘double-might test’ as set out in Ebner requires the applicant seeking disqualification - that is, Mr Brown - to address the court on two matters:

(a)   identify what it is said might lead the judge to decide the case other than on its legal and factual merits; and

(b)   articulate the logical connection between the matter and the feared deviation from the course of deciding the case on its merits.

8The application of the test does not call for the exercise of a discretion.  If apprehended bias is established, there will be a failure to afford a litigant procedural fairness and the decision-maker will have committed jurisdictional error.  The authority for that is referred to in the recent case of Edhouse & Edhouse (No 2) [2024] FedCFamC1A 111[3].  Mr Brown did not address in any substantive way either of these elements; he made submissions in the abstract. 

[3][2024] FedCFamC1A111 at [29] citing House v King (1936) 55 CLR 499

9As I understood the submissions, in effect, they were focused on actual bias.  Mr Brown asserted that I had deliberately drafted a document of categories in order to ambush him when he was expecting to proceed by way of objections in the order in which they appeared in the submissions.

10These assertions are not borne out by the transcript, and I refer to p8 and 9 of the transcript dated 21 June 2024, in which I notify the parties that I had looked at Mr Brown's breakdown into categories, which was helpful to me, and I had tried to break down the defendant's objections into a number of categories, and I had arrived at 11, and I wondered whether we could deal with them, each category at a time, and Mr Brown said, 'Yes.'

11I then notified the parties that I was hoping to have a whole day but I only had until lunchtime, and that I wanted to do it as efficiently as possible and wondered whether some things were capable of being dealt with briefly and quickly.  Mr Brown said, 'Yes.' 

12I said “and if we could - and I called those the easy ones. If we could do the easy ones first today. Mr Brown said “yes”. I continued

… that would then enable me … to either strike out or make other orders in relation to the easy ones.  And then I wanted to list [the hard ones], and when I say 'hard', I mean they contain complex legal questions, even for lawyers, let alone for litigants in person.  And, subject to what you’ve got to say, Mr Petrie, and you, Mr Brown, list each issue on a separate date at a time when we might have a block of time available, both to you, Mr Petrie and Mr Brown, and … I’ll allocate a block of time. We could do one in the morning the second one in the afternoon for instance. So I’ll go through my categories firstly and see whether you agree they’re kind of suitable categories. I thought the first one was, and Mr Brown, if you want to note this..”

13Mr Brown again said “yes” and then said “that makes sense”.

14In relation to this aspect of the objections, Mr Brown indicated that during the hearing on 21 June 2024, he liked the idea of categories, but when he pulled it apart afterwards, it appeared to him it was a deliberate way of dealing with him by ambush, and that my use of categories demonstrates actual bias because it is a deliberate strategy to put him off his game.  That is a paraphrase that I make of the submissions made by Mr Brown.

15Mr Brown made no submissions on the test for actual bias, despite it being brought to his attention during his submissions today, and the summary from Austin v Dwyer [2023] VSCA 227 at paragraph 33 being read out to him: That summary was:

Actual bias necessitates proof that a decision-maker, as a matter of fact, approached the issues with a closed mind or had prejudged so that they were ‘so committed to a particular outcome that he or she will not alter the outcome regardless of what evidence or arguments are presented’.

16I am unable to see or understand how a judge's attempt to deal with something efficiently by way of categories of objections and a request to the parties for their input on those categories and on that way of dealing with the matter can be reflective of any kind of apprehended or actual bias.  A judge is entitled to regulate the manner in which a proceeding will be heard and the order in which matters relevant to a proceeding will be dealt with.

17Mr Brown has produced no authority in support of the proposition that a judge has an obligation to provide him with a copy of the judge's notes for such regulation, in advance [of the hearing].  Mr Brown asserts that because he has a disability, (Autism), I was required to provide him with advance notice of the categories of objections.

18I was allocated Mr Brown's matters in November 2023.  There have been numerous listings and appearances by Mr Brown before me.  I have not observed nor received any information from Mr Brown about any inability by him to follow the proceedings or to respond to issues in court.

19I accept that he has told me that he has autism on a number of occasions.

20I have tried to accommodate that where necessary.

21The majority of the court in Ebner said at p9:

In a case of real doubt, it will often be prudent for a judge to decide not to sit in order to avoid the inconvenience that could result if an appellate court were to take a different view on the matter of disqualification. However, if the mere making of an insubstantial objection were sufficient to lead a judge to decline to hear or decide a case, the system would soon reach a stage where, for practical purposes, individual parties could influence the composition of the bench. That would be intolerable[4].

[4][2000] HCA 63 at [20]

22The majority also said, 'If a judge were anxious to sit in a particular case, and took pains to arrange that he or she would do so, questions of actual bias may arise.' 

23As far as I can see, Mr Brown has not raised any doubt whether the test for apprehended bias has been made out.  Mr Brown is a litigant in person and one which at times, I have found challenging to have before me.  I cannot say that I have any particular anxiety to sit and hear his case.

24I am mindful of the judicial duty that, unless legally disqualified, I am to perform the functions of my office.  I have a duty to hear this case unless Mr Brown can establish that I ought to disqualify myself. 

25On the question whether a judicial officer should be appointed from another jurisdiction, I have no power to disqualify any judicial officer other than myself, let alone the remainder of the judges of this court. 

26In Ebner, the majority said [at paragraph 74] that application should be made before the judicial officer who is sought to be disqualified and commented that there was no power of one judicial officer to disqualify another.

27Even Callinan J, who dissented on this point, observed [at paragraph 185] that:

Although the judge in a particular jurisdiction could hardly order that another judge of it not sit on, or decide a matter, it may well be possible for the former to decide a question whether the relevant facts are capable of giving rise to an apprehension of bias on the part of the latter if that judge were to sit on the case.

28On the question of Mr Brown's objection to my use of Fleming, there is nothing unusual about the use of a textbook by a judge.  Mr Brown was given an opportunity to respond to the matters in the textbook, which were brief (5 lines) and read out in court.  There was nothing in the submission that I read material selectively.

29Finally, Mr Brown suggests that I have made mistakes in my rulings, and all to his detriment.  If I have, these are matters to be dealt with by appeal and not by application for recusal.  Mr Brown has not appealed my ruling, despite requesting reasons so that he could consider his position and decide whether to appeal or not.  The Order was made on 1 May 2024, the reasons for it were given on 10 May 2024.

30I do not consider Mr Brown has established the requirements of the test for recusal, and I do not recuse myself.