McKechnie v The State of Victoria

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S EAPCI 2022 0075

ANDRE MCKECHNIE	Applicant
v
STATE OF VICTORIA	Respondent

---

JUDGE:	BEACH JA
WHERE HELD:	Melbourne
DATE OF HEARING:	Determined on the papers
DATE OF JUDGMENT:	26 June 2023
MEDIUM NEUTRAL CITATION:	[2023] VSCA 158
ORDER APPEALED FROM:	McKechnie v State of Victoria (Unreported, Supreme Court, 1 August 2022, Cavanough J)

---

COSTS – Application for leave to appeal – Application for leave to appeal against costs order – Hopeless application for interlocutory injunction – Costs ordered against applicant by primary judge – Proposed grounds of appeal not arguable – Proposed appeal having no prospects of success – Application for leave to appeal refused – Application for leave to appeal totally without merit within meaning of s 14D, Supreme Court Act 1986.

Supreme Court Act 1986, ss 14C and 14D.

---

Counsel
Applicant:		In person
Respondent:		Mr L Brown with Mr C Fitzgerald
Solicitors
Applicant:	Not applicable
Respondent:	Mr M Hocking, Victorian Government Solicitor

BEACH JA:

The applicant is a prisoner at Hopkins Correctional Centre. In September 2021, he commenced a proceeding in the Trial Division against the respondent in which he sought an injunction to permanently restrain the respondent from ‘forcing or coercing [him] to consume food which does not conform to kashrut law …’. At the same time, he filed a summons seeking interlocutory relief in the following terms:
An order for an interlocutory injunction restraining the defendant and its servants and agents from:
(a)Providing to the plaintiff foods which do not conform to kashrut law.
(b)Providing to the plaintiff foods without a properly empowered decision-maker turning their mind to the exercise of the power, and:
i.giving consideration to the plaintiff’s individual personal circumstances;
ii.giving consideration as to if forcing or coercing the plaintiff to consume foods which do not conform to kashrut law is “necessary” according to law;
iii.giving a proper consideration of the equitable operation of the ss 14(2) Charter right of the individual human person, such as the plaintiff, not to be forced or coerced so as to limit his freedom to practice his religious observance; and
iv.giving a proper consideration of the equitable operation of the ss 22(1) Charter right of the individual human person, such as the plaintiff to be treated with humanity and respect for the inherent dignity of the human person when they are detained in custody.
v.giving a proper consideration of the equitable operation of the ss 24(1) Charter right of the individual human person, such as the plaintiff, to not to be deprived, by the defendant and its servants and agents, of the resources, such as suitable nutritional requirements, necessary to allow the plaintiff to reasonably attend to legal matters for which he is self represented.
The application for an interlocutory injunction was heard by Cavanough J on 1 August 2022. At the conclusion of the argument, his Honour dismissed the application. In the course of giving reasons for the dismissal, his Honour said:
I am not satisfied that the applicant has a serious question to be tried, let alone a prima facie case. It seems to me that the case is extremely weak on the merits and will almost certainly not succeed. There is no undertaking as to damages offered.
The form of order that [the applicant] sought is an order that the Court could not possibly make in any satisfactory way. Damages would be an adequate remedy. There is no irreparable harm shown and there is little or nothing to show there has been a departure from the requirements of the Corrections Act, even interpreted in the light of the Charter of Human Rights. I further accept the submission in [the respondent’s] material to the effect that even if any relief were appropriate, it would be in the nature of mandamus, rather than injunction and again, that is a matter for the final hearing.
To make any order of the kind sought by Mr McKechnie, would be an order that would require constant supervision. Such orders are, generally speaking, not made by a court … .
Upon the dismissal of the application for the interlocutory injunction, counsel for the respondent applied for costs. He submitted that, while ordinarily costs might be reserved, this was a ‘different case’. He went on:
This was a case that was profoundly without merit, including the absence of an undertaking as [to] damages imposing an impossible hurdle, is the case where those cases [sic] like Fountain Select Meats[1] where the applicant, if you were to be properly advised [sic], would have been aware that this case was never going to succeed.
[1]A reference to Woodward J’s well known decision of Fountain Selected Meat (Sales) Pty Ltd v International Produce Merchants Pty Ltd (1988) 81 ALR 397, 401, concerning the circumstances in which an order for indemnity costs might be made against a party.
The judge then asked the applicant what he wished to say about costs. The applicant responded:
Ah, I’m sorry. I’m with whatever the court decides.
The judge then said:
Well, in my view this was such a misconceived application and I agree with [the respondent’s counsel] that had Mr McKechnie been properly advised he would have perceived that it was, on numerous grounds, a hopeless application and should never have been brought. … [I]n my view, it is an appropriate case for an order for costs to be made. The application is dismissed and [the applicant] is ordered to pay [the respondent’s] costs of the application, including any reserved costs … .
The judge then made formal orders dismissing the application and ordering the applicant to pay the costs of the application to be taxed on the standard basis in the absence of agreement.
On 29 August 2022, the applicant filed an application for leave to appeal to this Court. The application for leave to appeal identifies the decision from which the application for leave to appeal is made as being:
[o]nly that part of the Cavanough’s J decision [sic] relating to the award of costs … .
The applicant’s proposed grounds of appeal are:
1.The learned trial judge erred in awarding costs to the defendant in that his Honour did not sufficiently consider the negligible nature of any possible damages that may have been suffered by the defendant resulting from the injunctive orders sought, and for which the court relied upon to support the need for an undertaking by the plaintiff to pay such damages.
2.The learned trial judge erred in awarding costs to the defendant in that his Honour gave undue weight to the change in circumstances over the protracted court delay in bringing the application to hearing.
Pursuant to r 64.15(1) of the Supreme Court (General Civil Procedure) Rules 2015 (‘the Rules’), the Registrar of the Court of Appeal has referred the application for leave to appeal to a single Judge of Appeal for it to be considered and dealt with under r 64.15. Upon the Registrar’s referral, I considered that it was neither necessary nor desirable to have an oral hearing of the application.[2]
[2]See rr 64.15(2) and (5) of the Rules, and s 14D(1) of the Supreme Court Act 1986.
In support of his application for leave to appeal, the applicant filed a written case,[3] an affidavit affirmed by him on 5 May 2023,[4] and an affidavit said to have been affirmed on 8 December 2022.[5]
[3]Dated 18 August 2022, but filed on 29 August 2022.
[4]But incorrectly dated 20 March 2023.
[5]This affidavit was attached to a fax cover sheet dated 14 February 2023 and, on its face, appears to be one which the applicant relies upon in this proceeding, as well as in five separate proceedings filed in the Trial Division (including the proceeding in which he sought the interlocutory injunction).
I have considered each of the documents relied upon by the applicant in support of his application for leave to appeal. None of them provide any basis upon which the application for leave should not now be determined, nor any basis upon which it might be concluded that there was any arguable error by his Honour in the making of the costs order now sought to be impugned.
The difficulties associated with seeking leave to appeal against a costs order are well known. They were conveniently summarised in A Team Diamond Headquarters Pty Ltd v Main Road Property Group Pty Ltd.[6] For present purposes, it is sufficient to say that the applicant does not raise any arguable basis upon which the primary judge’s costs order might be set aside. For the reasons given by the primary judge, the application for an interlocutory injunction was completely hopeless. It had no prospects of success. That fact alone was a sufficient basis for his Honour to make the costs order he made against the applicant. The applicant’s contentions to the contrary are not reasonably arguable.
[6](2009) 25 VR 189, 191–2 [7]–[8].
In the circumstances, it is not necessary to deal with the respondent’s contention that the application for leave to appeal should be refused because the applicant made no submissions to the primary judge against the order being made, and that he should not now be allowed to advance arguments on the issue for the first time in this Court. That said, those matters provide an additional basis for refusing the present application for leave to appeal.
The applicant’s proposed appeal has no prospects of success. It having no prospects of success, the application for leave to appeal must be refused.[7] Additionally, the application for leave to appeal is ‘totally without merit’ within the meaning of s 14D(3) of the Supreme Court Act 1986.[8]
[7]See s 14C of the Supreme Court Act 1986.
[8]By reason of s 14D(3) of the Supreme Court Act 1986, the determination that the application for leave to appeal is totally without merit precludes the applicant from any right to apply to have the dismissal of his application for leave to appeal set aside or varied.

Conclusion

For the reasons given above, the application for leave to appeal will be refused.
In its written case, the respondent submitted that the application for leave to appeal should be dismissed with costs. Ordinarily, costs would follow the event upon the refusal of an application for leave to appeal. That said, I will give the applicant the opportunity to make any submissions he wishes to make about costs, including why they should not follow the event in this case.
---

[2023] VSCA 158

26 June 2023