Minogue v Falkingham

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

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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)

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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.

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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 advised by her client that the 2020 application had been considered and decided in the applicant’s favour by the High Risk Management Advisory Panel and had been referred to the Acting Commissioner with a recommendation.
Between 10 August 2020 and 18 September 2020, a series of emails were exchanged between the judge’s associate and the solicitor for the respondent. The applicant was not a party to that correspondence and copies of the emails were not immediately provided to him.
On 10 August 2020, in the first of the emails, the judge’s associate wrote to say that she had spoken to the judge and asked the respondent’s solicitor to call her. On 17 August 2020, the VGSO emailed the judge’s associate:
The Acting Commissioner is currently in a meeting with Ministers, but she has promised to look at the recommendation about Dr Minogue’s application for a laptop today. (The Commissioner is working on the hospital quarantines.) I will let you know as soon as I have more information.
In an emailed response, sent later that morning, the associate wrote:
Thank you for making those enquiries, it is appreciated by his Honour.
His Honour advises that it is important for him to know very soon.
On the following day, 18 August, the VGSO emailed the associate saying that the solicitor had just received ‘the signed off document from the Acting Commissioner approving “Craig Minogue access to a Corrections Victoria issued laptop on the grounds that his current in-cell computer is removed, additionally an external hard drive would be supplied if required.”’
On 20 August, the associate wrote to the VGSO advising that the judge would like to know as soon as possible what was to become of the 2019 proceeding in light of the 2020 decision. The email asked ‘[s]pecifically, whether VGSO has discussed with Mr Minogue an agreed disposition of the current proceeding and if not when it expects to be in a position to inform the court?’
Between 20 August and 31 August, four further emails were exchanged between VGSO and the associate, in which VGSO advised that discussions were continuing with the applicant.
On 11 September 2020, the associate wrote to the VGSO advising that the judge was seeking an update on the resolution of the matter and that if it remained unclear a mention would be held on 21 September. On 17 September, VGSO advised that the applicant did not accept the laptop on the terms set by the Commissioner, that he had ‘now made a further application for a desk top computer and a laptop’, and that ‘[d]iscussions are continuing.’ On that day, the associate advised that the judge was minded to mention the matter on 21 September 2020. A mention by audio visual link was listed for that day.

The mention on 21 September 2020

At the outset of the mention the judge outlined what had led to the listing of the mention as follows:
On 7 May, I heard the trial of this proceeding. In this proceeding, of course, Dr Minogue applied for the remedy of certiorari in relation to a decision made by the defendant on 26 November 2019 to deny him a laptop computer in his prison cell at Barwon Prison. He already had an in-cell desktop computer at that time.
While judgment was reserved on 10 August 2020, my associates were advised by email from the solicitor for the defendant that Dr Minogue had made a second application for a laptop computer, and that second application was being processed, and an outcome was expected within about a week of that time. And what I am about to summarise is what I understand to be the substance of communications between my associates and the solicitor for the defendant thereafter.
Ordinarily, communications are exchanged with all parties being copied in. That protocol is obviously difficult when one of the parties is in prison. I had expected, I must say, that whatever communications in writing were pacing between my chambers and the solicitor for the defendant would be forwarded on to Dr Minogue. That request was at least made in one of the emails, as I understand it.
On various occasions since 10 August 2020, the solicitor for the defendant advised my associates of the progress of the second application I have just referred to. On 18 August 2020, my associates were informed that the Acting Commissioner had approved Dr Minogue being supplied with a Corrections Victoria-issued laptop computer, and an additional external hard drive, if required, on the basis that his current in-cell desktop computer would be removed.
On 26 August 2020, my associates were further advised that the swap of the current in-cell computer for a new laptop computer was then being negotiated between Dr Minogue and the supervisor of his unit. On 31 August 2020, my associates were advised that Dr Minogue had requested that the terms of the Acting Commissioner’s approval be provided to him in writing before accepting the laptop computer, and I was informed that his new computer would not be delivered to him until he had accepted the terms of its provision.
On 11 September 2020, not having received any further information (indistinct) on my behalf my associates wrote to the solicitor for the defendant, stating that if the matter was not resolved shortly, the proceeding would be listed for mention on 21 September, that is, today.
On 17 September, the solicitor for the defendant advised my associates by email that Dr Minogue did not accept the laptop computer on the terms set out by the Acting Commissioner, and that he had made a third application, this time for a desktop computer and a laptop computer. The third application might be understood to cover what Dr Minogue aimed to achieve by his first application, without having expressly said so, namely, a laptop computer in addition to his in-cell desktop computer.
The judge then said he was interested to hear submissions on whether, in light of the 2020 decision, the 2019 proceeding was futile. In an exchange with the applicant, the judge noted that the applicant had been provided with the emails the judge had referred to on 18 September and the judge said that he regretted that the applicant had not been provided with them earlier, adding that it had been his belief that the applicant would have been provided with them much sooner than had been the case.
The applicant explained that he wanted to continue to seek relief in relation to the 2019 decision, saying that:
Time and time again they don’t properly make decisions and they hope that prisoners won’t – like me, won’t go to the enormous trouble of litigating. So there will be utility in the court instructing Correction[s] Victoria about how to make proper lawful decisions.
The applicant then told the judge that he had not received all of the emails that the judge had referred to and submitted that the respondent should provide an affidavit setting out all of the exchanges between VGSO and the Court. In response, the judge said that the applicant should be provided with the full chain of communications that had passed between the respondent’s solicitor and the Court.
The judge then returned to the question whether the 2019 proceeding had utility in light of the 2020 decision and the change in the respondent’s position on the provision of a laptop computer. The judge explained to the applicant that judicial review did not involve a merits review; that certiorari was a discretionary remedy in respect of which the question of utility would be relevant; and that even if the applicant was successful, it would likely result in a setting aside of the decision and reconsideration by the respondent which had in effect occurred on-up-to date material, in answer to the 2020 application. Finally, the judge noted that a finding of jurisdictional error in respect of one decision was unlikely to provide guidance on whether a subsequent decision was infected by jurisdictional error.
The respondent’s counsel told the judge that the respondent intended to apply for summary judgment of the 2019 proceeding on the basis that it was futile with events having been overtaken by the 2020 decision. The applicant said that he understood and accepted the ‘futility issue’, but added that if Corrections and he could not agree on the conditions on which the laptop was to be provided then the issues would remain live.
The matter was adjourned to 25 September to allow for further discussion between the parties on the significance of the 2020 application to the 2019 proceeding. The judge again reiterated to the respondent that all communications between the VGSO and the Court must be passed on to the applicant as soon as practicable.

Subsequent hearings

The matter returned for further mention on 25 September. The applicant advised the Court that he was abandoning his claim for certiorari and mandamus in the 2019 proceeding, but that he pressed his claim for declarations.
On 7 October 2020, the applicant commenced the 2020 proceeding seeking relief in relation to the 2020 decision.
On 6 November 2020, the judge had before him, first, an application by the applicant to join the 2019 proceeding and the 2020 proceeding (recalling that argument in the 2019 proceeding had been completed and that judgment was reserved); and, secondly, an application by the respondent for summary dismissal of the 2019 proceeding.
The judge proposed that the 2020 proceeding and the respondent’s motion for summary dismissal of the 2019 proceeding be listed for hearing together. That approach generally accorded with the wishes of the applicant, who told the judge that he was in ‘complete agreement’ with that course.
During the course of argument, the applicant said that ‘if it was to help’ he would withdraw the declarations he had sought in the 2019 proceeding to avoid an argument as to whether they were appropriate. Having told the applicant that any proposed declarations had to be tied to the facts rather than be expressed as abstract statements of what the law requires, the judge adjourned both proceedings for hearing. He gave the applicant the opportunity to amend the 2019 proceeding by deleting the claims for mandamus and certiorari and amending the form of the declarations he had sought. It must have been clear to both parties that the question whether declarations would issue in the 2019 proceeding should the applicant succeed, remained a live issue.
Near the conclusion of the mention, counsel for the respondent proposed a protocol by which email communications between the respondent’s solicitor and the Court would, at the same time, be sent to an email address at the prison where the applicant is detained with an instruction to prison staff to print the email, pass it on to the applicant, and then email in reply confirmation that this had occurred. The applicant said that this ‘would be a much better system.’
On 1 February 2021, in accordance with the course proposed by the judge and acceded to by the applicant, both the 2019 proceeding and 2020 proceeding came on for hearing. The judge identified two issues that arose in relation to the 2019 proceeding. First, he noted that it was common ground that the evidence in the 2019 proceeding would also be evidence in the 2020 proceeding. Secondly, he noted that the applicant was pressing for declarations in the 2019 proceeding.
In respect of the second matter, the applicant said he had assumed that in order to be able to rely on the evidence filed in the 2019 proceeding in the 2020 proceeding, he would need to keep the earlier proceeding on foot, and it was for that reason that he was seeking to maintain the declarations sought in the 2019 proceeding. The applicant continued:
[THE APPLICANT]: [T]he declarations in the 2020 matter cover almost the same ground as the 2019 matter, so I think that it would be more economical if I could simply rely on all the facts and circumstances and the events as they occurred in 2019 as the factual circumstances for this matter rather than pressing my declarations in the 2019 matter, which seem to simply – I seem to be repeating what I said in – I’ve said in 2020.
HIS HONOUR: All right.
[THE APPLICANT]: And there’s no need for Your Honour to take that on board and actually decide that.
The judge then said he would hear submissions on how the evidence from the 2019 proceeding might be relevant to the challenge to the 2020 decision. Immediately prior to the luncheon adjournment, before the respondent had completed her oral submissions, the judge said to the applicant that he could use the luncheon break to consider his reply and whether there was anything in the 2019 proceeding that he wanted to bring to the attention of the judge for the purpose of deciding the 2020 proceeding.
After orally replying to the respondent’s submissions, the applicant returned to the 2019 proceeding. The following exchange then took place:
[THE APPLICANT]: To be honest I put the 2019 matter out of my mind, but in the time I’ve had this afternoon I can simply say that the 2019 evidence is relevant for the delay in the decision making process that I suffer in these matters, and the opaque nature of the exercise of public power which I complain carries over to the 2020 events because the 2020 events, you know, one morphed – the 2020 case morphed into the, you know – the 2019 case morphed into the 2020 case.
HIS HONOUR:        Yes.
[THE APPLICANT]: I can say more, but I can also – I can’t really say more at this stage, but I have a complaint in both matters about the tactics and the way in which the defendant and the counsel have responded, and I believe that that is best seen by Your Honour considering the facts generally from the 2019 case. However, if it makes the situation easier to deal with I’m happy to forgo the declarations in the 2019 matter, as long as the factual basis stays.
HIS HONOUR:        I think, as I hear both you and Mr Brown, you are ad idem on that, that is you both are content to have the facts of 2019 comprise the body of facts which are taken into account in making the decision on the 2020.
[THE APPLICANT]: Yes.
HIS HONOUR:        And because the declarations you seek in respect of the 2020 proceeding are, I think, the same as those you sought in 2019, we only need to consider them once, not twice.
[THE APPLICANT]: Yes, I agree.
HIS HONOUR:        All right. So [I] think we’re all in heated agreement about that.

The judge’s orders

On 5 May 2021, the judge made final orders in the 2019 proceeding and in the 2020 proceeding.
In the 2019 proceeding, the judge ordered that the proceeding be dismissed without adjudication. He also ordered that the respondent’s summons for summary dismissal be dismissed without adjudication and made no order as to costs.
In the 2020 proceeding, the judge ordered that the proceeding be dismissed. He ordered the applicant to pay the respondent’s costs of the proceeding and the costs of and incidental to the filing and perusal of affidavit evidence filed in the 2019 proceeding.
A single set of reasons were published by the judge in respect of both proceedings. The reasons set out the events leading to both the making of the 2019 decision and the 2020 decision. The reasons do not deal with any challenge to the 2019 decision (but set out the facts relevant to the making of the decision). The reasons traverse all of the grounds seeking to challenge the 2020 decision and explain why none of the grounds were made out and that, even if they had been, declaratory relief would have been refused.

The proposed grounds of appeal

There are three proposed grounds of appeal:[1]
(a)the learned trial judge erred in not finding a reasonable apprehension of bias arising from private correspondence between the Respondent and his Honour’s chambers;
(b)the learned trial judge erred in law in finding that the Applicant’s Charter rights had not been breached by the Respondent’s decision of 26 November 2019; and
(c)the learned trial judge’s exercise of discretion as to costs miscarried in awarding the costs of the 2020 proceeding to the Respondent.
[1]An extension of time to bring the application for leave to appeal was sought by the applicant and not opposed by the respondent. An extension will be granted.
Subject to one matter, since none of the proposed grounds of appeal seek to challenge the dismissal of the 2020 proceeding, there is no point in rehearsing the reasons given by the judge. It suffices to note that the applicant failed to establish any of his grounds. The one exception concerns an argument advanced by the applicant that the 2020 decision was made in bad faith. At first instance, the applicant had relied on the ex parte communications between the VGSO and the Court referred to above as evidence of bad faith on the part of the respondent.

The judge dealt with the argument as follows:
The plaintiff pointed to three specific events as evidence of bad faith on the part of the defendant and its officers. The first event was a chain of email correspondence from the VGSO, on behalf of the defendant, to the Court in August 2020 to alert the Court to the fact that the plaintiff had made a second application for a laptop computer which the Acting Commissioner was soon to decide. This email correspondence was not copied to the plaintiff in the first instance but, upon the Court’s insistence, was later copied to the plaintiff. Although regrettable that it was not initially passed on to the plaintiff, the communication was evidently intended as a courtesy to the Court in circumstances where a decision in relation to the 2019 Proceeding was pending. The second event was the fact that Ms Westin referred to the incorrect version of the Commissioner’s Requirements in her affidavit, a mistake which was quickly rectified at the trial by the defendant conceding the error and accepting that the earlier version of the Commissioner’s Requirements was applicable. For relevant purposes there was no material difference between the two versions. The third event was an apparently erroneous statement by Ms Westin that the plaintiff had not previously had a laptop computer when, it appears, he did have a laptop computer early in his prison sentence. None of these matters was of any significance throughout the decision-making process. At most, they amount to an oversight of appropriate protocol and minor examples of some carelessness in the preparation of affidavit material for the 2020 Proceeding. These events do not supply any sufficient basis for an inference of bad faith in making the 2020 Decision.[2]
[2]Minogue v Falkingham [2021] VSC 185, [74] (Macaulay J).
Following the publication of the trial judge’s reasons, the judge invited written submissions on what orders should be made in each proceeding, including on costs. In the 2020 proceeding following consideration of the written submissions, the judge dealt with the issue of costs in ‘Other Matters’ in the orders as follows:
Upon reading the written submissions filed by each party pursuant to that leave, the Court makes the orders below for the following reasons:
…
·the Court applies the general principles guiding the exercise of its discretion to award costs pursuant to s 24 of the Supreme Court Act 1986 (Vic), in accordance with Northern Territory v Sangare (2019) 265 CLR 164 (‘Sangare’), as summarised by Edelman J in Sea Shepherd Australia Ltd v State of Western Australia [2014] WASC 66, [5];
·the plaintiff’s submissions that ordering costs would be futile or an exercise of punishment rather than compensation, or that applying the usual principle that costs should follow the event would be a fetter on the discretion, are, in the circumstances, rejected for the reasons given by the High Court in Sangare;
·there is no sufficient reason to depart from the usual principle that costs should follow the event; and
·as explained in the Reasons, the evidence tendered in proceeding S ECI 2019 05598 (Craig Minogue v Rebecca Falkingham) was, by consent, admitted into evidence in this proceeding: the costs of that evidence should be the subject of costs orders in this proceeding.

Ground 1: bias

The applicant submitted that by reason of the ex parte communications between the VGSO and the Court (which he referred to as private communications), a reasonable bystander would apprehend that the information that passed between the VGSO and the Court would form part of the information relied on in the decision to dismiss the application. He submitted that, prior to the mention on 25 September 2020, the judge or his chambers ‘had made it known to the respondent in this matter that the matter would be dismissed.’
In oral submissions, leading counsel for the applicant submitted that the apprehension of bias arose in respect of the determination of the 2020 proceeding. He submitted that the email communications showed a degree of familiarity between the solicitor for the respondent and the judge’s associate; that there were a number of separate communications; and that the communications concerned a matter of substance which might have affected the determination of the 2020 proceeding, in that they concerned whether another administrative decision would be made by the respondent to give the applicant a laptop computer.
Counsel for the applicant relied on the recent decision of the High Court in Charisteas v Charisteas[3] as an analogous case showing the vice of private communications between one party and the Court.
[3][2021] HCA 29 (‘Charisteas’).
The respondent submitted that the communications were not in relation to substantive matters; the judge said that he had expected that all the communications would have been copied to, or passed on to, the applicant in accordance with the announced practice of the Court; the communications were disclosed and then raised in open court by the judge before the 2020 proceeding had commenced; and that, in those circumstances, there was no basis on which a reasonable bystander might apprehend that the judge might not bring an impartial mind to the determination of the 2020 proceeding.

Decision

The applicable test for apprehended bias is well established. Where a question arises as to the independence or impartiality of a judge, the governing principle is that a judge is disqualified if a fair-minded lay observer might reasonably apprehend that the judge might not bring an impartial mind to the resolution of the question the judge is required to decide.[4] The application of this governing principle requires a two-stage analysis.[5] First, it requires the identification of what it is said might lead a judge to decide a case other than on its legal or factual merits. Secondly, it requires the articulation of the logical connection between the matter (the 2020 application) and the feared deviation from the course of deciding the case on its merits.
[4]Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337, 344 [6] (Gleeson CJ, McHugh, Gummow and Hayne JJ); [2000] HCA 63 (citations omitted) (‘Ebner’).
[5]Ebner (2000) 205 CLR 337, 343 [3], 344–5 [6]–[7], 348 [22]–[23] (Gleeson CJ, McHugh, Gummow and Hayne JJ), 362 [79] (Gaudron J); [2000] HCA 63; Concrete Pty Ltd v Parramatta Design & Developments Pty Ltd (2006) 229 CLR 577, 609–10 [110]–[111] (Kirby and Crennan JJ); [2006] HCA 55.
In Charisteas, there had been extensive private and personal communications between a judge and the barrister for one party to family law proceedings in the Family Court of Western Australia. Those communications, which extended over many months, were not disclosed to the other party. The High Court held that the undisclosed communications gave rise to a reasonable apprehension of bias.
The High Court said:
As five judges of this Court said in Johnson v Johnson, while the fair‑minded lay observer ‘is not to be assumed to have a detailed knowledge of the law, or of the character or ability of a particular judge, the reasonableness of any suggested apprehension of bias is to be considered in the context of ordinary judicial practice’.
Ordinary judicial practice, or what might be described in this context as the most basic of judicial practice, was relevantly and clearly stated by Gibbs CJ and Mason J in Re JRL; Ex parte CJL in 1986 by adopting what was said by McInerney J in R v Magistrates’ Court at Lilydale; Ex parte Ciccone in 1972:
The sound instinct of the legal profession – judges and practitioners alike – has always been that, save in the most exceptional cases, there should be no communication or association between the judge and one of the parties (or the legal advisers or witnesses of such a party), otherwise than in the presence of or with the previous knowledge and consent of the other party. Once the case is under way, or about to get under way, the judicial officer keeps aloof from the parties (and from their legal advisers and witnesses) and neither he nor they should so act as to expose the judicial officer to a suspicion of having had communications with one party behind the back of or without the previous knowledge and consent of the other party. For if something is done which affords a reasonable basis for such suspicion, confidence in the impartiality of the judicial officer is undermined.
In this matter, what is said might have led the trial judge to decide the case other than on its legal and factual merits was identified. It comprised the various communications between the trial judge and the wife’s barrister ‘otherwise than in the presence of or with the previous knowledge and consent of’ the other parties to the litigation. Indeed, given the timing and frequency of the communications between the trial judge and the wife’s barrister, it cannot be imagined that the other parties to the litigation would have given informed consent to the communications even if consent had been sought, and it was not. The communications should not have taken place. There were no exceptional circumstances.[6]
[6][2021] HCA 29, [12]–[14] (Kiefel CJ, Gageler, Keane, Gordon and Gleeson JJ) (citations omitted).
In Re RJL; Ex parte CJL,[7] Mason J said:
[T]he receipt by a judge of a private communication seeking to influence the outcome of litigation before him places the integrity of the judicial process at risk. A failure to disclose that communication will seriously compromise the integrity of that process. On the other hand, although the terms of a subsequent disclosure by the judge of the communication and a statement of its effect in some, perhaps many, situations will be sufficient to dispel any reasonable apprehension that he might be influenced improperly in some way or other, subsequent disclosure will not always have this result. The circumstances of each case are all important. They will include the nature of the communication, the situation in which it took place, its relationship to the issues for determination and the nature of the disclosure made by the judge.[8]
[7](1986) 161 CLR 342; [1986] HCA 39 (‘Re JRL’).
[8]Ibid 351.
The first step is to identify the matters that are said to give rise to the apprehended bias.
The relevant emails in this case were sent between 10 August and late September 2020. At that time, the judgment was reserved in the 2019 proceeding, and the 2020 proceeding had not yet been commenced. Indeed, the 2020 decision, which was obviously in contemplation in early August, was not made until after the first email exchange.
As the passage from Re JRL makes clear, there should be no ex parte communications between one party and a judge’s chambers. That approach accords with the relevant Practice Note[9] published by the Court, which provides:
6. COMMUNICATIONS
6.1 Communications with the Court in relation to court proceedings should take place via the relevant registry or through judges’ chambers via the relevant associate.
6.2 All such communication must, however, be undertaken with care to ensure that the impartiality and integrity of the Court is not undermined.
6.3 Communications between an associate and legal practitioners must always be open and uncontroversial. Communication by telephone should be avoided in all but purely administrative routine matters which involve no controversy. Otherwise, email correspondence is preferred with all parties included as recipients.
6.4 It is the responsibility of each practitioner to disclose to all other practitioners and parties the content of any email correspondence, or phone conversation, between him or herself and an associate.
[9]Supreme Court of Victoria, Practice Note SC Gen 4: Custom and Protocol, 30 January 2017.
These propositions are consistent with the judgment of this Court in R v Fisher.[10] In that case, Redlich and Dodds-Streeton JJA noted that failure to strictly comply with such procedures threatens the integrity of the proceedings and gives rise to the risk of an allegation of at least a perception of bias.[11]
[10][2009] VSCA 100. See also, John Holland Rail Pty Ltd v Comcare [2011] FCAFC 34.
[11]Ibid [40].
The content of the email communications went beyond the purely administrative in the sense that the making of a further decision about whether the applicant would be supplied with a laptop computer had the potential to affect the outcome of the 2019 proceeding. Indeed, on the respondent’s case, the 2020 decision provided a basis on which the respondent was entitled to summary judgment of the 2019 proceeding. In the circumstances, the parties should have agreed upon a form of communication with the judge’s associate, or failing agreement, the matter should have been dealt with in open court.
We accept that, given the potential relevance of the 2020 application and the making of the 2020 decision to whether the issues considered in the 2019 proceeding had become moot, the respondent was concerned that the judge should not be burdened with a judgment that was unnecessary or futile. We are confident that there was no intent to obtain any forensic advantage by sending the emails.
We are also conscious of the difficulties in communicating with a self-represented prisoner. The difficulty in having a prisoner receiving emails directly heightens the importance of ensuring that no matters of substance are communicated by email without the prior knowledge of the prisoner. In modern litigation, postal communication can involve delay and misunderstanding. In the circumstances, the protocol ultimately adopted by the parties in this case, which would have emails sent simultaneously to a specific email address in the prison with an instruction that the email be printed and provided to the applicant with a return email acknowledgment when this had occurred, would have ensured that the applicant was informed of all communications with the Court in a transparent and timely way.
Ground 1, however, is not resolved by asking whether the emails should have been sent. Rather, it is whether, given the events that occurred, the receipt of the emails gave rise to a reasonable apprehension of bias on the part of the judge. We have no hesitation in answering that question in the negative.
It may be accepted that the receipt of ex parte communications by a judicial officer may logically give rise to a reasonable apprehension that the judge might decide the matter other than on its merits. In reaching that conclusion, the reasonable bystander must be taken to have knowledge of the basic tenets of judicial practice, including that all communications with a court should be open and that modern trial management will often utilise various means of communication between the court and the parties that extends beyond the filing and service of formal documents and the conduct of business in open court.
Charisteas provides a striking illustration of the dangers that attend private communications between a judge and a legal practitioner involved in a case. However, the facts are entirely different to those in the present case and, contrary to the submission of the applicant, Charisteas does not propound any new test. As the High Court observed, there were, in that case, many private and personal interactions between the trial judge and barrister, and the judge’s impartiality might have been compromised by something said in the course of those communications or by some aspect of the personal relationship exemplified by the communications. The contents of the communications were unknown.
By contrast, the communications in this case were in writing and of an entirely different kind. In our view, they did not give rise to a reasonable apprehension of bias.
First, the judge was not a direct party to the communications. As the judge explained in open court, it was his understanding that the emails had been communicated to the applicant. The judge expressed his regret that this had not occurred and set about ensuring that it would not be repeated. There can be no suggestion that the judge was aware of, or countenanced, ex parte communications between his associate and the respondent’s solicitor. Even if the judge had read the emails and noticed that the applicant was not a named recipient, given the applicant is incarcerated, the judge would have reasonably proceeded on the premise that the solicitor for the respondent would ensure that the communications were provided to the applicant in a timely way. This would accord with the obligation in cl 6.4 of the Practice Note referred to above.
Second, there was full disclosure of the email correspondence. The principal complaint of bias related to whether the emails might have affected the proper determination of the 2020 proceeding. At the time the emails were sent, the 2020 proceeding had not been commenced and the fact that the communications were then in the open would have allayed any potential concern that a bystander may have had in relation to any future proceeding that may be issued. The fact that the judge gave the parties an opportunity to address the emails and their content also reinforced that he had an open mind on the potential relevance of the 2020 decision to the 2019 proceeding.
Third, and relatedly, the content of the emails, although traversing matters that were not purely administrative in nature, did not contain material that was extraneous or prejudicial in any relevant sense. None of the information imparted was controversial. It was inevitable that the judge would be told that the 2020 decision had been made, not because that fact was relevant to the adjudication of the issues in dispute but because it might have rendered the 2019 proceeding moot.
It is true that the significance of the 2020 decision to the 2019 proceeding was not the subject of agreement at the time the emails were sent and it could have been the subject of legitimate debate. That was matter appreciated by the judge, who ordered that there be a mention and afforded the applicant every opportunity to put submissions on that question. There is nothing in the emails that would logically cause the judge to decide the legal issues of whether the 2020 decision rendered the 2019 proceeding futile otherwise than on its merits. Indeed, the emails clearly show that in the event of any disagreement the matter would be mentioned and addressed in open court.
We do not accept, as was suggested in argument by the applicant, that the content of the emails might cause a judge to consider that the applicant was being unreasonable or recalcitrant. The emails do not paint the applicant in any particular light, nor do they foreshadow how the judge would assess the significance of the 2020 decision. Indeed, the applicant accepted in argument that had the emails been provided to him when they were sent, there would not have been a reasonable apprehension of bias.
In his written case, the applicant submitted that the communications conveyed that the judge had made it known that the 2019 proceeding would be dismissed. There is no basis for that submission. The content of the emails provides no foundation for a contention that a reasonable observer might apprehend that the judge might have prejudged how the 2020 decision might be relevant to the 2019 proceeding. The disclosure of the communications, the holding of the mention and allowing the matter to be adjourned for argument at the final hearing would have dispelled any possible apprehension that the judge had formed a view about the significance of the 2020 decision to the 2019 proceeding.
Fourth, armed with the emails, the applicant did not suggest that the judge could not bring an impartial mind to the hearing of either or both proceedings. Rather, the applicant made a submission that the emails evidenced bad faith on the part of the respondent. As set out above, this allegation was addressed and rejected by the judge in his reasons. It is not necessary to consider whether the applicant, as a self-represented litigant, was sufficiently aware that he could object to the constitution of the Court on the ground of bias such that he may be taken to have waived the opportunity to object.[12] But the use by the applicant of the emails as evidence of bad faith reveals an understanding that the emails might have reflected on the respondent and not on the judge.
[12]Vakauta v Kelly (1989) 167 CLR 568; [1989] HCA 44.

Stepping back, the reasonable lay observer would understand that emails had been sent to the associate and that there may have been a breakdown in proper practice, but there was no reason why the judge could not implement corrective measures by full disclosure and by allowing full argument on any issues that had arisen. The fact that the judge took that course meant that no reasonable bystander might reasonably apprehend that the judge might not bring an impartial mind to the issues he was called upon to decide.
Ground 1 must be rejected.

Ground 2: failure to find a breach of the Charter with respect to the 2019 decision

The applicant submitted that the judge erred in failing to consider whether the 2019 decision was made in breach of s 38(1) of the Charter of Human Rights and Responsibilities Act2006 (‘the Charter’). He submitted that the decision to refuse the applicant a laptop computer impeded his access to courts and a fair trial of impending criminal proceedings, and that the decision was not demonstrably justified under s 7(2) of the Charter.
This ground must be rejected.
As the above chronology of events shows, the applicant unequivocally abandoned any claim to relief in relation to the 2019 decision. There was no error in the judge failing to determine whether the 2019 decision was made in breach of the Charter. Indeed, for the judge to have done so would have entailed a fundamental breach of procedural fairness towards the respondent.
The issue of whether the 2019 proceeding retained any utility in light of the 2020 decision was clearly flagged by the respondent. The respondent filed a summons seeking summary dismissal on that basis. The issue was raised in Court on 21 September and 25 September 2020, and the applicant was given the opportunity to consider what relief, if any, he would continue to seek in relation to the 2019 decision. The possible implications of the 2020 decision for the 2019 proceeding were fairly raised by the judge and were obviously understood by the applicant.
The issue was again raised on 6 November 2020, and rather than determining whether any relief ought be granted in the 2019 proceeding, the judge adjourned that issue to the final hearing of the 2020 proceeding in February 2021. The applicant foreshadowed giving up on the relief sought in the 2019 proceeding in November 2020 and made his position unequivocally plain at the hearing in February 2021.
It is true that the applicant was self-represented, however, he is an intelligent man. As his documents reveal he has a Doctorate in Philosophy and a reading of the transcript reveals an ability to make considered and well thought out submissions. The judge outlined the issues of concern, including whether there was any utility in making a declaration on the 2019 proceeding and whether the declarations sought by the applicant were in a suitable form. At all times, the judge remained willing to entertain any relief that the applicant sought fit to press in the 2019 proceeding. There is no reason why the applicant should not be held to his decision to abandon relief in the 2019 proceeding.
There was no error in the judge not determining the 2019 proceeding on its merits and he was correct to dismiss it without adjudication. In the circumstances, it would be entirely wrong for this Court to embark on the hearing, for the first time, of the merits of the challenge to the 2019 decision. No error has been shown and it is not otherwise in the interests of justice for this Court to embark on that course.
Ground 2 is without merit.

Ground 3: costs of the 2020 proceeding

By proposed ground 3, the applicant seeks to overturn the costs order in the 2020 proceeding. As the orders made by the judge reveal, costs followed the event.
The making of a costs order entails the exercise of a discretion. Accordingly, the principles in House v The King[13] apply to any application for leave to appeal. More specifically, this Court has observed that appeals from orders as to costs are rightly treated as exceptional and require this Court to exercise particular restraint.[14] The authorities explain that the main rationale for that caution is that the trial judge is almost always best placed to assess in whose favour, and to what extent, the discretion as to costs should be exercised.
[13](1936) 55 CLR 499; [1936] HCA 40.
[14]AJH Lawyers v Mathieson Nominees Pty Ltd [2015] VSCA 227, [89] (Hansen and McLeish JJA, Robson AJA agreeing at [92]); Transport Accident Commission v O’Reilly [1999] 2 VR 436, 457 [46] (Ormiston JA); [1998] VSCA 106; PCCEF Pty Ltd v Geelong Football Club Ltd [No 2] [2019] VSCA 148, [38]–[41] (Whelan, McLeish and Emerton JJA).
The applicant submitted that, having regard to two factors, the costs order should be set aside. The first is that the applicant is in gaol and by reason of s 74AB of the Corrections Act 1986, which is directed to him alone, he cannot be granted parole unless he is in imminent danger of dying or is seriously incapacitated.
The second reason is that the Governor of the prison in which the applicant is incarcerated controls all aspects of the applicant’s finances and financial decision-making, either directly, by retaining 20 per cent of his income earned in working in the prison, or indirectly, by determining what items he can purchase. It was said that this control gives rise to a fiduciary relationship between the Governor and the applicant. It was also said that the respondent can exercise the powers of the Governor.[15]
[15]Relying on Hospital Products Ltd v United States Surgical Corporation (1984) 156 CLR 41; [1984] HCA 64.
It was submitted that the combination of these matters means that the costs order should not have been made.
It is not necessary to decide whether in some circumstances a Governor of a prison, or the Secretary, stand in a fiduciary relationship with a prisoner. It is true that a prisoner is in a position of some vulnerability, but the suggestion that the Governor, who is given responsibility for, amongst other things, the peace and good order of a prison, would be required to exercise every statutory discretion in the best interests of a particular prisoner is striking. It is difficult to see how a fiduciary duty could arise in relation to a decision about whether a prisoner should have access to a computer or in a judicial review challenge to that decision. The various duties imposed on the Secretary under the Corrections Act could not easily accommodate such a relationship.
In Castles v Secretary to the Department of Justice,[16] Emerton J, as her Honour then was, accepted a submission that the relationship between gaoler and prisoner is not one of the recognised categories, and does not bear the characteristics which would enable it to be described as fiduciary. The Secretary and the Governor are not in a position where their interests and duties conflict or where they might profit from their positions as Secretary and Governor.
[16](2010) 28 VR 141; [2010] VSC 310.
It is not necessary to consider these issues further. The issue for this Court is not whether the Secretary was justified in seeking a costs order, but whether the discretion of the judge to make a costs order on the usual basis that costs follow the event miscarried. The applicant submitted that costs should not follow the event because he was impecunious and that this was a matter known to the prison authorities who had control over his prison account. He did not raise the issue of fiduciary duty and he should not be permitted to raise it for the first time in relation to a costs order.
No error has been demonstrated. The fact that the applicant is impecunious (if that be the case and in respect of which there was no evidence before the judge) and that his prison account is subject to some control by prison authorities, does not mean that a costs order should not have been made. In all events, a costs order in favour of the respondent was well open to the judge.[17]
[17]Northern Territory v Sangare (2019) 265 CLR 164; [2019] HCA 25; Sea Shepherd Australia Ltd v Western Australia [2014] WASC 66, [5] (Edelman J).
Ground 3 is without merit.

Conclusion

The application for leave to appeal must be refused. Before leaving this matter, we acknowledge that the applicant was represented by pro bono counsel who provided great assistance to the Court in their representation of the applicant.
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[2022] VSCA 111

14 June 2022