Legal Research
Cases
Minogue v Falkingham

Minogue v Falkingham

Case [2022] VSCA 111 14 June 2022

Apprehension of Bias

Infringement of Rights

Costs

Civil Litigation & Procedure

Human Rights Law

Type to search within this case.

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S EAPCI 2021 0057

CRAIG MINOGUE	Applicant
v
REBECCA FALKINGHAM (in her capacity as the Secretary to the Department of Justice and Community Safety)	Respondent

---

JUDGES:	BEACH, NIALL and EMERTON JJA
WHERE HELD:	Melbourne
DATE OF HEARING:	31 May 2022
DATE OF JUDGMENT:	14 June 2022
MEDIUM NEUTRAL CITATION:	[2022] VSCA 111
JUDGMENT APPEALED FROM:	[2021] VSC 185 (Macaulay J)

---

PRACTICE AND PROCEDURE – Apprehension of bias – Where bias said to arise from communications with judge’s associate not copied to applicant – Whether subsequent disclosure before the decision is made addresses any apprehension – Whether fair-minded lay observer might reasonably apprehend that trial judge might not bring impartial mind to decision – No reasonable apprehension of bias.

HUMAN RIGHTS – Whether applicant abandoned claim to relief in respect of earlier decision – Whether judge erred in failing to consider that the decision to refuse the applicant a laptop computer infringed s 38(1) of Charter of Human Rights and Responsibilities Act 2006 – No error.

COSTS – Order made that costs to follow event – No error in costs decision – Leave to appeal refused.

---

Counsel
Applicant:		Mr P Kounnas with Mr H Lewis
Respondent:		Mr L Brown with Mr C Fitzgerald
Solicitors
Applicant:
Respondent:	Victorian Government Solicitor’s Office

BEACH JA

NIALL JA
EMERTON JA:

This proceeding arises from two requests made by the applicant, a prisoner serving a life sentence for murder, for permission to fund and purchase a laptop computer and peripheral equipment. At all relevant times, the applicant has had a desktop computer in his cell, which is not connected to the internet and does not have the capability of sending and receiving emails. Amongst other things, the computer is used for legal proceedings involving the applicant.
The first request was refused on 26 November 2019 by the Commissioner of Corrections for Victoria (‘the Commissioner’) (‘the 2019 decision’). The 2019 decision prompted a proceeding by way of judicial review in the Trial Division seeking orders for mandamus and certiorari and a suite of declarations (‘the 2019 proceeding’). That proceeding was heard by Macaulay J, as his Honour then was, on 7 May 2020 and judgment stood reserved on that day.
On 8 May 2020, the applicant made a second request for a laptop computer (‘the 2020 application’). In mid-August 2020, the 2020 application met with some success, in that the Commissioner approved the applicant having access to a Corrections Victoria issued laptop and external hard drive if required, subject to the desktop computer in the applicant’s cell being removed (‘the 2020 decision’). That decision did not satisfy the applicant and he commenced a second proceeding in the Trial Division seeking to challenge the 2020 decision (‘the 2020 proceeding’).

Communications between the respondent’s solicitor and the Court

In the proceeding at first instance, the applicant represented himself. The respondent was represented by the Victorian Government Solicitor’s Office (‘VGSO’).
On 7 August 2020, the solicitor for the respondent was…

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 Minogue v Falkingham

Details

AGLC: Minogue v Falkingham [2022] VSCA 111
Case: [2022] VSCA 111
Decision Date: 14 June 2022

CaseChat Overview and Summary

In the case of Minogue v Falkingham, the applicant sought relief from a decision made by the respondent in their capacity as a judge. The applicant alleged bias on the part of the judge due to communications with a judge's associate that were not provided to the applicant. The application was heard in the Supreme Court of Victoria. The applicant further argued that the judge erred in failing to consider that the refusal of a laptop computer infringed section 38(1) of the Charter of Human Rights and Responsibilities Act 2006. The applicant also sought an order for costs.

The court was required to decide whether there was an apprehension of bias on the part of the judge due to the undisclosed communications. The court was also required to determine whether the judge erred in failing to consider the infringement of the applicant's rights under the Charter of Human Rights and Responsibilities Act 2006. The court further had to consider whether there was any error in the costs decision made by the judge.

The court found that there was no reasonable apprehension of bias on the part of the judge as the undisclosed communications were disclosed before the decision was made. The court also found that there was no error in the judge's failure to consider the infringement of the applicant's rights under the Charter of Human Rights and Responsibilities Act 2006 as the applicant had abandoned the claim to relief in respect of the earlier decision. The court further found that there was no error in the costs decision made by the judge. The application for leave to appeal was refused.

The court made an order that the costs of the proceedings were to follow the event.

Orders