McKechnie v Evans (Communications Summonses)

[2024] VSC 295

IN THE SUPREME COURT OF VICTORIA Not Restricted

AT MELBOURNE

COMMON LAW DIVISION

JUDICIAL REVIEW AND APPEALS LIST

S ECI 2021 00045

ANDRE MCKECHNIE	Appellant
v
DETECTIVE PETER DAVID EVANS	Respondent

S ECI 2021 03896

ANDRE MCKECHNIE	Plaintiff
v
STATE OF VICTORIA	Defendant

S ECI 2023 03095

ANDRE MCKECHNIE	Plaintiff
v
ADULT PAROLE BOARD OF VICTORIA	Defendant

S ECI 2023 03223

ANDRE MCKECHNIE	Plaintiff
v
COMMISSIONER OF CORRECTIONS VICTORIA	Defendant

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JUDGE:	Gray J
WHERE HELD:	Melbourne
DATE OF HEARING:	24 April 2024
DATE OF JUDGMENT:	5 June 2024
CASE MAY BE CITED AS:	McKechnie v Evans (Communications Summonses)
MEDIUM NEUTRAL CITATION:	[2024] VSC 295

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PRACTICE AND PROCEDURE — Parties’ arrangements as to details of electronic service of documents — Self-represented litigant in prison — Supreme Court (General Civil Procedure) Rules 2015 r 6.07(1)(f) — Electronic Transactions (Victoria) Act 2000 ss 13A, 13B — Orders and declarations declined.

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APPEARANCES:	Counsel	Solicitors
For the Appellant/Plaintiff	Appeared in person
For the Respondent in S ECI 2021 00045	Mr G Buchhorn	Office of Public Prosecutions Victoria
For the Defendants in the other matters	Mr N Petrie	Victorian Government Solicitor’s Office

HIS HONOUR:

Introduction

1. Andre McKechnie has filed a summons (the communications summons) in substantially identical form in each of these four proceedings, seeking the following orders:[1]

   [1]Summons dated 24 January 2024 and filed 9 February 2024 in each of proceeding S ECI 2021 00045, S ECI 2021 03896, S ECI 2023 03095 and S ECI 03223.

1.        orders that all materials sent from the defendant[s] will be provided so that they are received by the plaintiff in an acceptable digital format;

2.        that all materials sent by the defendant[s], and received by the plaintiff in hard-copy will be provided from the defendant[s], only as materials additional to the same materials sent by the defendant[sJ, and received by the plaintiff in an acceptable digital format; and

3.        that any materials sent from the defendant[s], to the plaintiff will only be considered by the defendant[s] and the Court, as received by the plaintiff after the plaintiff personally confirms that the materials have been received by the plaintiff in an acceptable digital format; and

4.        orders that all materials sent from the Court will be provided so that they are received by the plaintiff in and acceptable digital format;

5.        that all materials sent by the Court and received by the plaintiff in hard-copy will be provided from the Court only as materials additional to the same materials sent by the Court and received by the plaintiff in and acceptable digital format; and

6.        that any materials sent from the court to the plaintiff will only be considered by the Court as received by the plaintiff after the plaintiff personally confirms that the materials have been received by the plaintiff in an acceptable digital format; and

7.        directions as to the future conduct of this proceeding including any stay, adjournment, or adjustment to timetabling deemed appropriate in relation to the issues raised in relation to the above orders sought.

1. Mr McKechnie filed an affidavit and submissions in substantially identical form in each proceeding in support of the communications summons.[2]

   [2]Affidavit of Andre McKechnie (unsworn) dated 24 January 2024 and filed 9 February 2024 in each of proceeding S ECI 2021 00045, S ECI 2021 03896, S ECI 2023 03095 and S ECI 03223 (Mr McKechnie’s first affidavit), and affidavit of Andre McKechnie (unsworn) dated 16 February 2024 and filed 23 February 2024 in each of proceeding S ECI 2021 00045, S ECI 2021 03896, S ECI 2023 03095 and S ECI 03223 (Mr McKechnie’s second affidavit), both verified on 24 April 2024.

1. The respondent and defendants in the four proceedings oppose these summonses. On 24 April 2024, counsel for the defendants in S ECI 2021 03896, S ECI 2023 03095 and S ECI 03223 made oral submissions opposing the communications summonses, also relying on written submissions and affidavit material.[3] Counsel for the respondent in S ECI 2021 00045 relied on the submissions on behalf of the defendants in the other proceedings and agreed to abide by the outcome of the communications summons in them.

   [3]Affidavit of Thomas McNamara affirmed 23 April 2024 (Mr McNamara’s Affidavit); Defendant’s submissions regarding the ‘communications summons’ dated 23 April 2024 (Defendants’ Submissions).

1. The parties agreed to me determining the communications summonses on the papers without the need for any further hearing after the one on 24 April 2024.

1. Pursuant to directions, Mr McKechnie filed further affidavit material and submissions in support of the communications summonses.[4] I have received Mr McKechnie’s further unsworn affidavit into evidence as if verified.

   [4]Affidavit of Andre McKechnie (unsworn) dated 22 May 2024 (Mr McKechnie’s third affidavit); ‘Applicant’s submissions in support of his communications summons…’ dated 22 May 2024 (Mr McKechnie’s Submissions).

1. Mr McKechnie’s submissions drew my attention to r 6.07(1)(f) of the Supreme Court (General Civil Procedure) Rules 2015 and Electronic Transactions (Victoria) Act 2000, ss 13A and 13B. His submissions set out three ‘proposed narrowed orders’ as follows:

1. documents that are required to be served on the applicant sent by email are to be sent in accordance with rule 6.07(1)(f) of the Supreme Court (General Civil Procedure) Rules 2012 [sic].

2. the time and place of receipt of any documents sent in accordance with rule 6.07(1)(f) of the Supreme Court (General Civil Procedure) Rules 2012 is the time and place determined by ss 13A and 13B of the Electronic Transaction (Victoria) Act 2000 [sic] respectively.

3. a declaration that for the purpose of ss 13B(1)(b) and 13B(2)(e) of the Electronic Transaction (Victoria) Act 2000 [sic], the applicant’s address of business, and habitual residence, whilst the applicant is held in custody, is the specific cell in which the applicant is held at any given time.

1. There is no evidence that the respondent and defendants were given notice of Mr McKechnie’s reliance on the Electronic Transactions (Victoria) Act 2000. Mr McKechnie has not sought to amend the communications summons.

1. I have decided to dismiss the communications summons in each proceeding, for the reasons that follow.

Applicable principles

1. Neither party drew any applicable case law to my attention.

1. I will assume that I have power to make orders of the kind sought in the communications summons, in the exercise of the Court’s inherent jurisdiction or power to make such orders as the Court may determine to be appropriate ‘to prevent the abuse or frustration of its process in relation to matters coming within its jurisdiction’.[5] Further, at least in respect of the three proceedings that are civil proceedings,[6] I will assume that my power to make any such orders is governed or at least guided by the Civil Procedure Act 2010 ss 8, 9 and 48, and the overarching purpose set out in s 7.

   [5]See, for example, PT Bayan Resources TBK v BCBC Singapore Pte Ltd (2015) 258 CLR 1, [43], citing Jackson v Sterling Industries Ltd (1987) 162 CLR 612, 623.

   [6]Proceedings S ECI 2021 03896, S ECI 2023 03095 and S ECI 03223.

The affidavit material

1. Mr McKechnie’s first affidavit asserted that he was unable to accept legal materials unless received in an acceptable digital format. That affidavit did not provide reasons for this.

1. The reasons were explained in Mr McKechnie’s second affidavit. This affidavit explained that Mr McKechnie’s wishes to send and receive documents in digital form are not being implemented by the management and staff of his prison, Port Phillip Prison. In short, against his wishes, hardcopies of both incoming and outgoing documents are being forced upon him.

1. As to incoming documents, since January 2024 these have been sent to the prison for him in digital form, but prison staff have generally printed out the documents and delivered them to him in hardcopy rather than providing them to him in digital form. The way they are delivered is problematic, because they are often lumped together in A4 envelopes without information as to who the sender was.

1. Likewise, when he wishes to send a document, there has been an intervening process involving hardcopy documents, involving the steps that will all follow. Mr McKechnie would typically save a digital copy of the document on a USB thumb drive. He has then been required to provide that USB to staff to have the document printed, and the printed copy and USB thumb drive would be returned to him, and he would be charged for the printing. Then he would be required to provide the printed copy to other staff who would scan it to digital format, which would then be sent from the prison to the addressee by email. The hard copy would be returned to Mr McKechnie, and he would generally then dispose of that hardcopy and simply retain the digital copy. The process would generally take about four days.

1. Mr McKechnie’s second affidavit also referred to difficulties he has encountered in obtaining information from Victoria Legal Aid.

1. He referred to communications he has had on these topics with the General Manager or Governor of Port Phillip Prison. He also referred to the need for him to be able to search materials digitally and to the fact that the Supreme Court’s Prothonotary cannot be contacted by him from the prison over the telephone.

1. Mr McNamara’s affidavit exhibited extensive correspondence relating to the communication of court documents to and from Mr McKechnie at his prison. The defendants have clearly been endeavouring to ensure that the process of serving and facilitating service of such documents is as smooth as possible.

1. Mr McKechnie’s third affidavit deposed to a new proposed method to overcome delays in communication between himself and the defendants by email:

The method I proposed once set up is very simple. By zipping documents to be sent in to a single file, confirmation of receipt need only be made for that one file. This can be achieved by including in the name of the zipped file, an md5 hash/checksum of the file. Receipt is then confirmed by checking the hash/checksum in the file name against the actual hash/checksum of the zipped file. This can be automated so that it is performed instantly. Precise receipt then follows. If receipt is returned, the sender knows precisely what was received.

1. He exhibited a guide or instructions as to the proposed method. He deposed that he had tested the method with others and found it to be very sound and reliable. He also deposed about prison property store and only having limited access to the scanner.

1. Finally, he states that he is the sole proprietor of a business contracted as an agent to perform the work necessary or proper for the attainment of justice or for enforcing or defending ‘the rights of the applicant’, that is, himself.

Consideration

1. Communications to and from Mr McKechnie in these proceedings have not always been as smooth as one would like to see. However, those communications have been sufficient for Mr McKechnie to be able to progress his various proceedings. There is no basis on which it could reasonably be said that Mr McKechnie’s access to justice is being impeded. I am not satisfied that anything resembling an abuse of process is occurring. It is not necessary for the court to make any orders along the lines sought in the communications summons to secure the effective administration of justice.

1. Further, the particular orders sought in the communications summons would not be appropriate in any event.

1. Proposed orders 1 and 4 are similar in content, albeit order 1 applies to documents sent from defendants and proposed order 4 applies to documents sent from the court. Both of these orders are unclear as to the persons who are required to comply with them. They are ambiguous as to whether they are intended to bind persons other than the defendants and the court. If they are intended to bind the court, then that raises further complexities. If they are intended to bind staff or management of Port Phillip Prison, or some particular officer there, then that is not made clear. In any event, no such person was heard in response to the communications summons, so it would be problematic to make an order directed to any such person.

1. Proposed orders 2 and 5 seem to depend upon, and in substance to achieve no more than, orders 1 and 4.

1. Proposed orders 3 and 6 would leave the question of whether the defendants or the court could ‘consider’ a document to have been served upon Mr McKechnie entirely up to him. I do not regard that as a prudent or appropriate thing to order. It is possible that there may one day be circumstances in which it might be just and appropriate, upon proper evidence, to consider Mr McKechnie to have received a document, even if he does not acknowledge receipt.

1. All of the proposed orders would in my view be likely to generate disputes about compliance. Making the proposed orders is therefore not only unnecessary, but would be contrary to the overarching purpose. They would not promote just outcomes and would be likely to generate a multiplicity of inefficient and costly disputes, and to cause delay.

1. The ‘proposed narrowed orders’ set out in Mr McKechnie’s submissions are substantially different from the orders sought in the communications summons, not ‘narrowed’. I gave leave to Mr McKechnie to file and serve submissions in support of the communications summons, not leave to amend it.

1. Order 1 of those ‘proposed narrowed orders’, read on its own, might not take the defendants by surprise, but equally (when read on its own) adds nothing to the Supreme Court (General Civil Procedure) Rules 2015 in any event. I would decline to make an order that merely repeats the effect of r 6.07(1)(f) of those Rules along the lines of ‘proposed narrowed order’ 1.

1. Further, reading all three ‘proposed narrowed orders’ as a whole, they rely on and refer to the Electronic Transactions (Victoria) Act 2000, which was not referred to in the communications summons or in any of Mr McKechnie’s material filed before 24 April 2024. The defendants would be taken by surprise by this. There is real doubt as to whether and on what basis that Act applies. If there is any chance that that Act does apply, then the defendants have a right to be heard on whether the orders sought are appropriate. The leave I gave to the defendants to file and serve reply submissions would be an inadequate means of according them fairness.

1. I decline to make any of the ‘proposed narrowed orders’.

Conclusion

1. I will dismiss the communications summons. The parties may file and serve written submissions on the question of costs, limited to five pages. The respondent and defendants must file and serve their submissions within seven days of publication of these reasons, and Mr McKechnie is to file and serve his submissions within seven days of receiving service of the respondent’s and defendants’ submissions.