McKechnie v The State of Victoria - [2023] VSCA 158

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S EAPCI 2022 0075

ANDRE MCKECHNIE	Applicant
v
STATE OF VICTORIA	Respondent

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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)

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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.

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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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading McKechnie v The State of Victoria

Details

AGLC: McKechnie v The State of Victoria [2023] VSCA 158
Case: [2023] VSCA 158
Decision Date: 26 June 2023

CaseChat Overview and Summary

McKechnie, the plaintiff, sought leave to appeal a decision made by the primary judge in the Supreme Court of Victoria, which had ordered costs against the plaintiff following a hopeless application for an interlocutory injunction. The defendant, the State of Victoria, opposed the application for leave to appeal on the grounds that the proposed grounds of appeal were not arguable and that the appeal had no prospects of success. The matter was determined by the Court of Appeal, which ultimately refused the plaintiff leave to appeal.

The central issue before the Court of Appeal was whether the application for leave to appeal against the costs order was arguable and had a prospect of success. In assessing this, the court considered the merits of the proposed grounds of appeal and the likelihood of success if the appeal were to proceed. The Court of Appeal noted that the plaintiff's application for an interlocutory injunction was indeed hopeless and that the primary judge was correct in awarding costs against the plaintiff. The court found that the proposed grounds of appeal did not present a viable challenge to the primary judge's decision, and the appeal had no reasonable prospects of success.

In reaching its decision, the Court of Appeal emphasised the importance of the criteria set out in sections 14C and 14D of the Supreme Court Act 1986, which govern applications for leave to appeal. The court held that the application for leave to appeal was totally without merit, as the proposed grounds of appeal were not arguable and the appeal had no prospects of success. Consequently, the application for leave to appeal was dismissed, and the primary judge's costs order was upheld.

As a result of the Court of Appeal's decision, the plaintiff's application for leave to appeal against the costs order was refused. The primary judge's costs order against the plaintiff was upheld, and the plaintiff was not granted leave to appeal the decision.

Orders