McKechnie v Secretary to the Department of Justice and Community Safety (Costs Judgment)

[2023] VSC 638

IN THE SUPREME COURT OF VICTORIA Not Restricted

AT MELBOURNE

COMMON LAW DIVISION

JUDICIAL REVIEW AND APPEALS LIST

S ECI 2021 01652

ANDRE McKECHNIE	Plaintiff
v
SECRETARY TO THE DEPARTMENT OF JUSTICE AND COMMUNITY SAFETY & ORS (according to the attached Schedule)	Defendants

---

JUDGE:	Ginnane J
WHERE HELD:	Melbourne
DATE OF HEARING:	On the papers
DATE OF JUDGMENT:	2 November 2023
CASE MAY BE CITED AS:	McKechnie v Secretary to the Department of Justice and Community Safety (Costs Judgment)
MEDIUM NEUTRAL CITATION:	[2023] VSC 638

---

JUDICIAL REVIEW – Costs – Unsuccessful application for preliminary discovery – Calderbank offer – Not established that offer unreasonably refused – Costs follow the event.

---

APPEARANCES:	Counsel	Solicitors
For the Plaintiff	In person
For the Defendants	Mr C Fitzgerald	Victorian Government Solicitor’s Office

HIS HONOUR:

1. On 11 September 2023, I gave judgment dismissing the plaintiff’s application for preliminary discovery of documents relating to payments of, and the discontinuance of weekly payments to, prisoners in Victoria.[1] I ordered written submissions about costs.

   [1]McKechnie v Secretary to the Department of Justice and Community Safety (Weekly Payments Judgments) [2023] VSC 542.

1. The plaintiff submitted that, although his application for preliminary discovery was dismissed, its purpose was substantially successful. He sought six months from the date of my judgment, 11 September 2023, to 11 March 2024, before I make a decision about the question of costs of the preliminary discovery application. I understood this was because he anticipated that he would commence a proceeding related to the subject matter of his preliminary discovery application by that date. He submitted that costs of this application should be decided in the subsequent proceeding.

1. More generally, Mr McKechnie argued that he commenced this application as a person held in custody, for the benefit of all persons, not only for those held in custody, but all those affected by the results of people’s treatment or mistreatment whilst held in custody. He submitted that the defendants have aimed to frustrate and delay his application. He had sought to narrow its scope and clarify the documents he sought. He considered that he had thereby conformed to the overarching obligations of the Civil Procedure Act 2010[2] by narrowing the issues in dispute and minimising delay, but that the defendants had not. He stated that he will probably appeal my judgment and order.

   [2]Sections 23 and 25.

1. The defendants submitted that the plaintiff was entirely unsuccessful in obtaining the relief he sought and that the Court should deal with the question of costs now, rather than waiting for subsequent litigation to be commenced.[3] They argued that the plaintiff’s application did not have sufficient public interest to depart from the usual costs order. Any such public interest ended once the plaintiff received Ms M Westin’s affidavit in August 2021, which established that there were no relevant documents to discover. The plaintiff’s application did not involve or require any ‘meaningful testing’ of the Corrections legislation or regulations or the Charter of Human Rights and Responsibilities Act 2006. The plaintiff had no basis for contending that the defendants acted inconsistently with their overarching obligations under the Civil Procedure Act.

   [3]Reliance was placed on the decision in Guest v Guest [2016] VSC 76, [5].

1. The defendants sought an order that the plaintiff pay their costs, including any reserved costs, on a standard basis from the commencement of the proceeding to 28 October 2022 and thereafter on an indemnity basis. This was because they had made a Calderbank[4] offer dated 28 October 2022 by which they offered to resolve the dispute on terms that the plaintiff’s application be dismissed with no order as to costs. They referred to Ms Westin’s affidavit and her evidence that no ‘amenities allowance’ was paid to prisoners. They put Mr McKechnie on notice of their intention to seek an indemnity costs order from the date of the letter if the offer was not accepted. They confirmed that the offer was open until 4:00pm on 11 November 2022. Mr McKechnie did not respond to that letter. The defendants submitted that the ultimate outcome that Mr McKechnie obtained in the proceeding was less favourable than the terms of the defendants’ offer. I accept that to be the case, because at the least, as I decide below, I will order that Mr McKechnie must pay the defendants’ costs on a standard basis.

   [4]Calderbank v Calderbank [1975] All ER 333.

Analysis

1. I apply the principles in Hazeldene’s Chicken Farm Pty Ltd v Victorian WorkCover Authority (No 2)[5] which contain guidance on the exercise of the discretion as to costs when a Calderbank offer is made. A key consideration is whether it has been established that the plaintiff unreasonably rejected or refused the defendants’ offer.

   [5](2005) 13 VR 435.

1. I accept that the defendants’ offer was made at a point when Mr McKechnie’s application was at a reasonably advanced stage and that the offer, by not requiring that Mr McKechnie have to pay costs, was significant.

1. Mr McKechnie altered the description of the documents that he requested to those relating to the provision or non-provision of weekly payments and relevant human rights considerations in the period 5 April 2017 to 19 August 2021. His application was based on what he described as the payment to him of an amenities allowances for 30 years up to January 2018. Despite this alteration, Mr McKechnie’s prospects of success in his application were speculative at the time of the defendants’ offer.

1. However, for the following reasons, I do not consider that it has been established that Mr McKechnie unreasonably rejected or refused the defendants’ Calderbank offer. When he received the offer, he was in custody, as he still remains. As such, he would have lacked access to the legal research resources and opportunities to seek relevant information to support his case concerning payments to prisoners, which an ordinary citizen would have had. He did not have legal representation. Ms Westin’s affidavit contained significant evidence that an amenities allowance was not paid to prisoners and that the payments that had been made to Mr McKechnie ceased because he refused to perform prison work. However, Ms Westin’s conclusions were based on prison documents and records concerning prison policies and procedures. They included the Commissioner’s Requirements (CR Prisoner Monies), which included the Scale of Earnings, the Deputy Commissioner’s Instruction, Local Operating Procedures, including four versions of relevant documents, and details of Mr McKechnie’s prisoner account and the transactions it recorded. Those documents consisted of more than 50 pages and were likely to have been more understood by management than by prisoners. They had to be applied against the legal requirements of the Corrections Act 1986 and the Corrections Regulations 2019. The issues about which the plaintiff was seeking preliminary discovery concerned payments made to prisoners in a period from 2017 to 2021 and the human rights considerations pertaining to the decisions to provide such payments or not to provide them. Those matters have importance, not just for the plaintiff, but for all prisoners and those involved in prison administration.

1. Taking those matters into account, I consider that the 14-day period, which Mr McKechnie had to respond to the defendants’ offer, which might well have been reasonable for an ordinary member of the public, was not reasonable for a prisoner in his position.

1. In order to respond to the offer, Mr McKechnie would have had to attempt to assess the complex legislation and regulations and the prison documents attached to Ms Westin’s affidavit. He would then, within 14-days, have had to assess the strength of his application and decide whether he should proceed with, or abandon, his application. He had, of course, received Ms Westin’s affidavit approximately 14 months previously. But, the offer required him to make a definitive assessment of the strength of his case and that of the defendants’. As part of that assessment, he would have had to consider whether he wished to cross-examine Ms Westin at the hearing of his application. He would also have had to consider whether he was likely to be able to obtain evidence from other prisoners, or former prisoners, about prison practice concerning payments to prisoners, that might support his case and which might suggest that the defendants had discoverable documents in their possession, custody or power. He had to do all this whilst in prison, without legal representation and without the resources available to an ordinary self-represented litigant. As mentioned, the issues which his application concerned, were not unimportant in a prisoner’s life and in prison administration. This combination of circumstances has led me to conclude that, in this case, the defendants have not established that the plaintiff unreasonably rejected or refused their Calderbank offer.

1. However, I consider that the plaintiff should pay the defendants’ costs of the preliminary discovery application on a standard basis. His application for preliminary discovery was unsuccessful and I see no reason why costs should not follow the event. While I recognize that issues concerning the treatment of prisoners may raise questions of public interest, there is no certainty that the plaintiff will issue any proceeding. It is not appropriate to defer the consideration of costs until 11 March 2024 as the plaintiff seeks or until the Court of Appeal has decided any appeal that the plaintiff may bring.

1. Therefore, I consider that the plaintiff should pay the defendants’ costs of the proceeding on a standard basis.

SCHEDULE OF PARTIES

BETWEEN:
ANDRE McKECHNIE	Plaintiff
AND
SECRETARY OF THE DEPARTMENT OF JUSTICE AND COMMUNITY SAFETY	First Defendant
MINISTER FOR CORRECTIONS VICTORIA	Second Defendant
COMMISSIONER FOR CORRECTIONS VICTORIA	Third Defendant