McKechnie v State of Victoria (Recusal Application)

[2024] VSC 193

IN THE SUPREME COURT OF VICTORIA Not Restricted

AT MELBOURNE
COMMON LAW DIVISION
JUDICIAL REVIEW AND APPEALS LIST

COMMON LAW DIVISION

GENERAL LIST

S ECI 2021 03896

ANDRE MCKECHNIE	Plaintiff
v
STATE OF VICTORIA	Defendant

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JUDGE:	GRAY J
WHERE HELD:	Melbourne
DATE OF HEARING:	Determined on the papers by consent
DATE OF JUDGMENT:	22 April 2024
CASE MAY BE CITED AS:	McKechnie v State of Victoria (Recusal Application)
MEDIUM NEUTRAL CITATION:	[2024] VSC 193

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APPLICATION FOR RECUSAL — Conduct of presiding judge in hearings in this proceeding and related proceedings involving same plaintiff — Whether a fair-minded lay observer might reasonably apprehend possible bias — Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	In person
For the Defendant	Mr C Fitzgerald	Victorian Government Solicitors Office

HIS HONOUR:

1. By a summons dated 10 November and filed on 21 November 2023, the plaintiff Mr McKechnie seeks two orders:

(a)   an order for my recusal; and

(b)  a stay of this proceeding pending an application to the Court of Appeal for a stay, in relation to a foreshadowed appeal from my orders on 2 November 2023.

1. These reasons only relate to the recusal application, not the stay application.

1. The recusal application was supported by an unsworn affidavit of Mr McKechnie dated 10 November 2023, also filed on 21 November 2023.

1. At an interlocutory hearing on 27 November 2023, the parties agreed that the recusal application be determined on the papers and I made directions for further affidavit material and submissions.

1. Mr McKechnie provided to the Registry:

(a)   a document in support of the recusal application comprising 54 paragraphs titled ‘Plaintiff’s Submissions’ dated 15 December 2023 and filed on 19 December 2023 (Plaintiff’s Submissions); and

(b)  an unsworn affidavit dated 15 December 2023 and filed on 19 December 2023 comprising 3 pages, together with exhibit AM-1 thereto comprising 23 pages.

1. The defendant opposes the recusal application, and has filed submissions and an affidavit.[1]

   [1]‘Defendant’s Submissions in response to the Plaintiff’s Summons filed 21 November 2023’, filed 22 December 2023 and affidavit of Clytie Shimmin affirmed 22 December 2023.

1. Mr McKechnie seeks ‘as a matter of urgency that the Honourable Justice Gray recuse himself from this proceeding’.[2] He sought the same outcome in another proceeding, on the same grounds.[3]

   [2]Plaintiff’s summons dated 10 November 2023 and filed 21 November 2023, paragraph 1.

   [3]McKechnie v Evans S ECI 2021 00045.

1. Today I delivered reasons for judgment in that proceeding, dismissing the application that I recuse myself in that proceeding.

1. For the following reasons, and in the interests of the efficient use of court resources, I have decided simply to adopt my reasons for judgment in the other proceeding as my reasons in this proceeding:

(a)   The initial form of the submissions Mr McKechnie made in support of his contention that I must recuse myself in that proceeding were substantially identical to the submissions on which he did so in this proceeding, paragraph by paragraph, including the paragraph numbering.

(b)  In the other proceeding, I took steps to ensure that the transcripts of the various relevant hearings on which Mr McKechnie relied were made available to him and the defendant in that case, and tendered into evidence. All of those transcripts were of open hearings in proceedings instituted by Mr McKechnie. There had been some uncertainty about whether Mr McKechnie was obtaining access to those transcripts during the conduct of the various proceedings over recent months, so I thought it best to be sure that he had them. Also, the defendant in that proceeding had not been privy to those hearings.

(c)   Mr McKechnie then provided a revised version of the submissions in the other proceeding supported by references to the transcripts. Aside from a correction of a date, the addition of footnotes (including some giving pinpoint references to transcripts), and the replacement of the concluding two paragraphs, it appeared from my review that the substantive text was the same.

(d)  Therefore, the references to the ‘Plaintiff’s Submissions’ in the footnotes of my reasons for decision in the other proceeding may equally be read as references to the Plaintiff’s Submissions in this proceeding.

(e)   Unlike this proceeding, there was an oral hearing of the recusal application in the other proceeding, during which both Mr McKechnie and counsel for the respondent in that proceeding made oral submissions. I placed significant reliance on the analysis of the issues by counsel in the course of these oral submissions in determining the application. I decided that it would be prudent to await that hearing and consider those oral submissions before reaching a conclusion on the recusal application in this proceeding, a point I mentioned during that hearing.

(f)    The evidence relating to the applications before me in both proceedings was the same, aside from the formal adduction of the transcripts into evidence in the other proceeding. There are no issues concerning Harman undertakings in relation to any of the transcripts.

(g)  While the defendant in this proceeding was not privy to Mr McKechnie’s revised submissions in the other proceeding, this will not prejudice the defendant in light of the conclusion I have reached. Mr McKechnie is not prejudiced, because he has had access to all transcripts and submissions on which my conclusion was reached.

(h)  Even though the reasons for judgment do not rely on the submissions and affidavit filed by the defendant in this proceeding, I do not think this entails any prejudice to the defendant in this proceeding, because I have decided the application in favour of the position urged by the defendant in any event. Nor does it prejudice Mr McKechnie.

1. For the same reasons as those I have published today in proceeding S ECI 2021 00045, McKechnie v Detective Peter Evans (Recusal Application) [2024] VSC 192, I have decided to dismiss the recusal application that Mr McKechnie has made in this proceeding too.

1. I will dismiss paragraph 1 of Mr McKechnie’s summons filed 21 November 2023 and hear the parties as to costs and any other orders arising from the above reasons for decision. I will also hear the parties as to the further conduct of this proceeding, including directions for material and submissions relevant to Mr McKechnie’s application for a stay of this proceeding.[4]

   [4]Plaintiff’s summons dated 10 November 2023 and filed 21 November 2023, paragraph 2.