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[2020] VSCA 249
Court of Appeal (Vic)
2020-09-25
Kyrou JA
Original judgment source is linked above.
1 The applicant, John Russell, regularly sent and received documents using the fax machine at the Yea Library for a fee. The Murrindindi Shire Council operates the library. By letter dated 5 April 2016, the Council informed the applicant that he was not permitted to attend the library from 9:00 am until 1:00 pm on Wednesdays - when school children attended for 'story time' - for a period of six months. The letter referred to allegations of the applicant upsetting children.
2 On Wednesday 13 April 2016 at around 9:00 am, the applicant attended the library to use the fax machine. A library staff member, Kerry Tull, told him that he was not allowed to be in the library and had to leave. The fax machine then began to receive documents, which the applicant took from the machine and claimed were his privileged legal documents. Ms Tull took the documents from the applicant's hand and refused to return them. She then walked behind the counter to telephone police. As she did, the applicant grabbed her arm and attempted to take the papers from her.
3 Andrew Bond, manager of business services at the Council, overheard the conversation between the applicant and Ms Tull and witnessed the applicant grab her arm.
4 The applicant was charged with unlawful assault contrary to s 23 of the Summary Offences Act 1966 ('charge 1'), entering a place in a manner likely to cause a breach of the peace contrary to s 9(1)(g) of that Act ('charge 2') and wilfully trespassing in a public place contrary to s 9(1)(d) of that Act ('charge 3'). The first respondent, Simon Eaton, is the informant in relation to the charges.
5 On 14 November 2016, a magistrate convicted the applicant of charges 1 and 3 and imposed fines of $1,000 and $500, respectively, in addition to ordering him to pay $1,514 in costs. Charge 2 was dismissed.
6 The applicant appealed to the County Court under s 254 of the Criminal Procedure Act 2009. A de novo hearing was conducted by Judge Mullaly on 28 August 2017. At the commencement of the hearing, at which the applicant was represented by Jeremy Twigg QC through the Victorian Duty Barristers' Scheme, Judge Mullaly granted the applicant an extension of time in respect of the appeal.[1] Ms Tull and Mr Bond gave evidence and were cross-examined by Mr Twigg. Mr Twigg did not put to them any inconsistencies in their evidence. The applicant gave evidence and was cross-examined by the prosecutor. Statements of the first respondent and the chief executive officer of the Council were tendered by consent. In response to a statement by the prosecutor that he had been told that the contents of those statements were admitted, Mr Twigg said 'Yes, Your Honour.'[2]
7 At the conclusion of the evidence, Mr Twigg did not submit that the prosecution evidence was unreliable due to inconsistencies or any other basis, and did not contend that the applicant's evidence should be preferred. Mr Twigg's submission in relation to guilt focused on the following propositions: the documents that the applicant had taken from Ms Tull were legally privileged; they belonged to him; and he had acted in self-defence in protecting his property.
8 Judge Mullaly found that charges 1 and 3 were proven but dismissed charge 2. He made an order setting aside the orders of the magistrate and imposed an aggregate fine of $500, without recording a conviction, in addition to ordering the applicant to pay $1,514 in costs.
9 On 28 August 2017, Judge Mullaly delivered an oral ruling which, as appears below, did not become available to the applicant or the first respondent until April 2019. The ruling was transcribed in the following unrevised terms:
Just on the material that I have, the circumstances seem to me as described by the prosecution witnesses, Ms Tull and later Mr Bond, that the documents were received at a time when [the applicant] was inside the library when he should not have been there. He was a trespasser in a public place, it having been made clear to him both before and at the time that he needed to leave.
Thereafter, some documents were in his hands, some were in the hands of Ms Tull. [The applicant] used unlawful force to obtain the documents by grabbing Ms Tull's arm and wrenching and twisting and causing her pain such that she released the documents and was left with residue redness and the like, and psychological stresses.
It seems to me that any assertion that there is a defence to the unlawfulness that it is a lawful assault falls away when analysis is given to what the property was and what the circumstances were of [the applicant] being in the premises when he should not have been there.
[The applicant's] own evidence establishes the offence in my view, although I do not accept his version that he lifted [Ms Tull's] fingers, while I do not accept the version that he was told that he should come back and was licensed, therefore to be there the next day. Thus, I find the charges that remain unlawful assault and wilfully trespassing in a public place to be proved.[3]
10 On 26 September 2017, the applicant filed an originating motion in the Trial Division seeking judicial review of Judge Mullaly's order ('judicial review proceeding' or 'judicial review application'). The originating motion was drafted by the applicant. He sought to quash the order on the grounds of duress (ground 1), unspecified error of law (ground 2), denial of procedural fairness (ground 3), 'strong grounds of defence' and 'every chance of success' (ground 4) and 'numerous inconsistencies within [the sworn evidence of] the Informant & witnesses Tull & Bond' (ground 5).
11 The proceeding was listed before McDonald J. On 2 May 2019, the applicant sought to have McDonald J recuse himself on the ground of apprehended bias.
12 Following a number of adjournment applications by the applicant, the trial commenced on 27 May 2019. Neither the applicant nor the second respondent, the County Court of Victoria, appeared. Rather than conducting an oral hearing, McDonald J adjourned the trial and stated that he would determine the proceeding on the basis of the written submissions that had already been filed. On 26 July 2019, the judge delivered his reasons for rejecting the applicant's claims and for refusing to recuse himself.[4] On the same day, the judge made an order dismissing the proceeding and requiring the applicant to pay the first respondent's costs, save for the costs of a hearing on 8 April 2019.[5]
13 The applicant seeks leave to appeal against McDonald J's decision on the grounds that: the judge's discretion to refuse to adjourn the trial miscarried; the judge erred in refusing to recuse himself; and the judge failed to afford the applicant natural justice by failing to procure legal assistance for him.
14 For the reasons that follow, I have determined that the application for leave to appeal is totally without merit and should be dismissed.[6]
15 Before discussing the course of the judicial review proceeding, it is worth noting three matters at this stage.
16 First, the applicant was 77 years of age at the time of the incident in the Yea Library on 13 April 2016 and 80 at the time of the directions hearings and trial before McDonald J.
17 Secondly, the documents that the applicant filed with the Court included three psychiatric reports dated 12 October 2006, 2 May 2007 and 17 January 2019 from Dr Nigel Strauss, Dr David Weissman and Dr Nicholas Ingram, respectively.[7] Those reports had been prepared for compensation claims with respect to injuries arising from a motor vehicle accident on 27 October 2003 and a fall on 26 September 2018. The reports showed that the applicant suffered from chronic mild to moderate depression and anxiety.
18 Thirdly, the applicant, who is not a lawyer, represented himself in the judicial review proceeding.
Adjournment applications and other events prior to 26 April 2019
19 The proceeding was fixed for trial before McDonald J on 16 August 2018 but was adjourned to 8 April 2019 by order of Judicial Registrar Clayton on 15 August 2018 following non-compliance by the first respondent with an order for the provision of the transcript of the County Court hearing on 28 August 2017.
20 On 27 March 2019, the applicant filed a summons seeking an adjournment of the trial on the grounds that: he was seeking 'court support'; the court book had not been finalised; he was seeking the inclusion of additional documents; and he was unable to provide authorities until he had legal support.
21 On 2 April 2019, Judicial Registrar Clayton denied the application for an adjournment and confirmed that the trial was to proceed on 8 April 2019. She stated that the applicant was well acquainted with the Victorian Bar's pro bono scheme - having availed himself of it in the past - and that there was nothing before the Court to demonstrate that the applicant had taken any steps to obtain legal representation or assistance.
22 On 5 April 2019, the applicant filed an affidavit seeking an adjournment on the grounds that he was greatly disadvantaged due to his current mental state and was seeking court support or pro bono assistance. Exhibited to the affidavit were the psychiatric assessments referred to at [17] above.
23 On 8 April 2019, the date that the trial was to proceed, the applicant did not appear. McDonald J noted the absence of Judge Mullaly's ruling of 28 August 2017 from the transcript of the County Court hearing of that day. McDonald J directed that the first respondent provide the ruling to the applicant. He also ordered that the proceeding be adjourned to 26 April 2019 for a directions hearing and that the costs of that day's hearing be reserved.
24 As grounds 1 and 2 place significant reliance on exchanges between the applicant and the judge at the directions hearing on 26 April 2019, it is necessary to make extensive references to the transcript of that hearing.
25 At the commencement of the directions hearing, McDonald J stated that as Judge Mullaly's ruling had become available after 8 April 2019, that impediment to the matter proceeding to hearing had been removed. He said that his desire was for the matter to be set down for hearing as quickly as possible and asked whether the parties wanted to say anything about that.
26 The solicitor for the first respondent stated that the first respondent was ready to proceed and that he would update the court book to include two affidavits of the applicant which had previously not been included due to administrative oversight. He also stated that the first respondent objected to the inclusion of a 1,500-page court book pertaining to a separate proceeding.[8]
27 McDonald J then addressed the applicant and, after stating that the applicant had now received Judge Mullaly's ruling, the following exchange took place:
HIS HONOUR: I certainly want to give you an opportunity, if you wish to, to expand or to make submissions in relation to that ruling. But for my part I can't see any reason why this matter can't be set down for hearing in the next couple of weeks.
...
[APPLICANT]: Your Honour, it's not a matter of urgency. It's three years this April since this - - -
HIS HONOUR: Well, it is a matter of urgency, Mr Russell, in the sense that I am moving out of the Common Law Division into the Commercial Court.
[APPLICANT]: Yes.
HIS HONOUR: In early July. So I'm currently sitting in the Common Law Division.
[APPLICANT]: Yes.
HIS HONOUR: So this matter, as a practical matter - - -
[APPLICANT]: Well - - -
HIS HONOUR: As a practical matter, it is to be heard and determined by 30 June, and there's no reason why that can't happen, and it's going to happen. All right?
[APPLICANT]: Well - - -
HIS HONOUR: So let's all get on the same page. I'm very keen to give you an opportunity to make any submissions in relation to Judge Mullaly's ruling. But it's only one page. It shouldn't take you long. But I have in mind that this matter will be set down for hearing within the next couple of weeks.
[APPLICANT]: Your Honour, as much as you might say that your situation precludes everything else, I differ. As - it is three years. Justice Mullaly provided his reasons. I now have those reasons, and now I can start my case. Prior to this, I had no opportunities to found my case.[9]
28 The applicant then referred to inconsistencies in the evidence adduced against him in the County Court trial and sought to explain why the charges of assault and trespass should not have been found proven. McDonald J interrupted him and the following exchange took place:
HIS HONOUR: Well, you can make all of those submissions, Mr - - -
[APPLICANT]: Yes.
HIS HONOUR: - - - Russell. No one's cutting you out from making any submissions.
[APPLICANT]: Yes, indeed.
HIS HONOUR: I just - I want to have a hearing. That's what we do in courts, Mr Russell.
[APPLICANT]: I want to have a hearing, myself.
HIS HONOUR: All right. Well, then let's - - -
[APPLICANT]: And I want to have - - -
HIS HONOUR: - - - get our diaries out and sort out when we can have a - - -
[APPLICANT]: I don't think I can do it - - -
HIS HONOUR: - - - hearing.
[APPLICANT]: - - - by the time that you now bring. I think that there's a reasonable - I should explain to you that I'm not able and capable of obtaining the court's needs in my current situation, and I've gotten this far.
HIS HONOUR: Well, you've already filed very substantial submissions, Mr Russell.
[APPLICANT]: I have just received - - -
HIS HONOUR: Which I have had the opportunity to consider. You have filed, already, substantial submissions. The ruling of Judge Mullaly is of short compass, but effectively, he accepts the evidence which was led on behalf of the - - -
[APPLICANT]: Okay.
HIS HONOUR: - - - prosecution, and he decided the case on the evidence. Now, if you want to - - -
[APPLICANT]: I'm sorry, Your Honour, but - - -
HIS HONOUR: - - - advance a submission - - -
[APPLICANT]: Okay. I would like, therefore - - -
HIS HONOUR: You don't speak over the top of me, Mr Russell. All right?
[APPLICANT]: I'm sorry.
HIS HONOUR: Right. Good.
[APPLICANT]: I'm not well. Good, I'd like to make my point.
HIS HONOUR: He's accepted the evidence of the prosecution witnesses. If you want to contend that there was no proper foundation for him to do so, you are perfectly entitled to advance that submission and I'll listen to it carefully and I'll rule on it. But that won't take you long to put that together.
[APPLICANT]: Well, Your Honour, I differ.
HIS HONOUR: The date today is 26 April. I propose that this matter will be listed for hearing on - let me see - I think we'll list this matter for hearing on Monday 27 May. The matter will be listed for hearing on Monday 27 May.[10]
29 McDonald J then directed the respondent's solicitor to file an updated court book by 22 May 2019 and gave leave to the applicant to file further submissions by 10 May 2019. The applicant then referred at length to what he described as a 'parallel action' he had commenced against the Council and an employee of the Council on 18 January 2019 in respect of a decision by the Council to ban him from its facilities seven days per week. He indicated that he wanted to use documents pertaining to the parallel action in the judicial review proceeding. The following exchange took place in the context of McDonald J ruling that the material in the parallel action - including the 1,500-page court book - was irrelevant and could not be used in the judicial review proceeding:
HIS HONOUR: Materials contained in proceedings you've commenced in January of this year are not relevant to the narrow question which falls before the court - - -
[APPLICANT]: No.
HIS HONOUR: - - - as to whether or not you are able to successfully establish grounds of judicial review that you've set out in your originating motion under order 56 in respect of a decision made on 28 August 2017. I'm not going to prevent you from making any submissions you want to advance in respect of why you say that decision - - -
[APPLICANT]: Yes.
HIS HONOUR: - - - at the time it was made - - -
[APPLICANT]: Yes.
HIS HONOUR: - - - was wrong.
[APPLICANT]: Yes.
HIS HONOUR: But I'm not going to embark upon some broad-ranging inquiry in relation to steps which have been taken subsequently. The seven-day ban wasn't in place at the time of the - - -
[APPLICANT]: Original - - -
HIS HONOUR: April - was it April 2016?
[APPLICANT]: Two thousand and - 13 April 16.
HIS HONOUR: But at that time, you were subject to a ban from attending on Wednesday morning between 9 am and 1 pm. So I'm not going to give you leave to file in the court book material which is relating to a seven-day ban, which you're challenging in other proceedings. It's simply not relevant. You need to just focus on why you say this decision made in August 2017, in respect of events which occurred in April 2016, why you say it's wrong. That's all you need to do.
[APPLICANT]: Yes. Your Honour - - -
HIS HONOUR: Everything else is just a distraction. It's not going to help your case.
[APPLICANT]: Your Honour, you are distracted, I'm sorry to say. A matter that you refer to as being Wednesday-only ban between 9 and 1 o'clock - - -
HIS HONOUR: Yes.
[APPLICANT]: - - - on a Wednesday only - - -
HIS HONOUR: Yes.
[APPLICANT]: - - - was discharged after six months. This new matter is to do with an - with council banning me from 43 facilities - - -
HIS HONOUR: Yes.
[APPLICANT]: - - - based on the Magistrates' Court decision that I had trespassed and assaulted this woman [Ms Tull]. Now, I'm saying that what you've said, that there's no comparency, is wrong - - -
HIS HONOUR: Well, I've made - - -
[APPLICANT]: - - - because that ban - - -
HIS HONOUR: I've made my ruling, Mr Russell. My ruling is that you do not have leave to include in the court book - - -
[APPLICANT]: Okay.
HIS HONOUR: - - - materials relating to the seven-day ban.[11]
30 Following his ruling, McDonald J asked the applicant whether he was making attempts to obtain legal representation. The applicant responded that he had made an application and made reference to 'a barristers scheme'.[12] He said that he disputed McDonald J's ruling. The judge responded that, in due course, the applicant would have rights of appeal if he was not happy with the ruling. The following exchange then took place:
[APPLICANT]: Yes. Thank you.
HIS HONOUR: All right. So - - -
[APPLICANT]: Well, I'm saying - - -
HIS HONOUR: - - - I hear what you - - -
[APPLICANT]: No, before you go - those two -
HIS HONOUR: I hear what you're - - -
[APPLICANT]: Would you mind if I allowed myself - - -
HIS HONOUR: No, can you just be quiet and listen to me. I hear what you say - that you're unhappy with my ruling. But I've made that ruling.
[APPLICANT]: Yes, and I say it's wrong.
HIS HONOUR: And - all right. And, well, you say it's wrong. Well, you're entitled to your opinion.
[APPLICANT]: Well - - -
HIS HONOUR: And you can exercise such rights as you may wish to exercise in due course.[13]
31 The applicant continued to insist that McDonald J's ruling was wrong. He then repeated that the 1,500-page court book in the parallel action was relevant to the judicial review proceeding. He said that now that he had received Judge Mullaly's ruling after a three year delay, he can commence to prepare the judicial review proceeding, particularly having regard to inconsistencies in evidence. He indicated that he would not be ready by the scheduled hearing date of 27 May 2019. The following exchange took place in that context:
[APPLICANT]: Look, I don't think you are understanding of what it is I'm saying. And you've got a closed mind to what I'm saying. I'm trying to relieve myself of this nuisance, which is brought by [Council] for the sole purpose of restricting my access. And there's no basis for it. And I'm - can show there's no basis for it by the inconsistencies within their evidence. And I intend to show that there was an incitement and that they brought me to this situation for their own doing. Now, if that takes me six months, my friend, I'm sorry. But it will take six months and it'll have to happen.
HIS HONOUR: Yes, the - - -
[APPLICANT]: I will not allow you - - -
HIS HONOUR: - - - the matter - - -
[APPLICANT]:- - - to push my case - I'm trying to run my case. Because you're going to change location. I have no concern at the fact that you're going to maybe call for court. I don't care about that. I'm only interested in the outcome. And I don't think it's appropriate for you to make a [decision] as to where my right is in proceeding with this matter within the proper time frame.[14]
32 There was then discussion about whether the applicant had other court commitments on 27 May 2019. He confirmed that he did not. In the context of that discussion, the following exchange took place:
[APPLICANT]: I'm trying to run my case. I can't be dictated by circumstances. Sure enough, I'm late today by circumstance. That's unavoidable. Your situation is not unavoidable. We can look for another justice on the day.
HIS HONOUR: Mr Russell - - -
[APPLICANT]: Because I'm (indistinct).
HIS HONOUR: The - - -
[APPLICANT]: This is - this is something that I shouldn't have to live with.
HIS HONOUR: Mr Russell, the fact that you're a litigant in person does not confer upon you the right to speak disrespectfully to the court.
[APPLICANT]: It doesn't?
HIS HONOUR: No.
[APPLICANT]: Well, who else is going to speak for me?
HIS HONOUR: So you - you kindly - - -
[APPLICANT]: You wouldn't - - -
HIS HONOUR: You kindly address me in a respectful manner, which you have not been doing. I'm trying - - -
[APPLICANT]: I think I've given you all respect.
HIS HONOUR: All I'm trying to do, Mr Russell, is to get this matter on for hearing in a manner which - in a time frame which is fair to both parties.
[APPLICANT]: I don't think it's fair to both parties, because now we're suffering the same way.
HIS HONOUR: Why do you say that 27 May is not fair to you?
[APPLICANT]: Because I'm just saying to you, I haven't been able to consult with the court or get them - I've had a ruling by Judicial Registrar Clayton. And she set down a schedule of dates. We had to look at those. I've no idea what they are - that's only three days ago. It took them ten days to give me the ruling. But nevertheless, those are matters which will be considered. I've also got a matter at the County Court which is a very serious matter, which the others - the respondents know about.
...
HIS HONOUR: If you have another court hearing on 27 May - well, you can't be in two places at the one time. But I've - I don't understand you to be saying that you're in another court hearing on 27 May.
...
[APPLICANT]: I didn't say that.
HIS HONOUR: All right.
[APPLICANT]: Stop putting words into my mouth, Your Honour. This is why I'm upset. You are not listening to what I'm saying. I'm trying to be astute, and I don't think you're ready to understand. Sometimes - - -
HIS HONOUR: All right.
[APPLICANT]: Sometimes individuals such as myself - - -
HIS HONOUR: Mr Russell, I would urge you to try and get some legal representation, if you can. It would - it would assist the court. And obviously, it would assist you. But - - -
[APPLICANT]: Well, Your Honour, you're right.
HIS HONOUR: - - - what I'm proposing to do is to - is - I understand the position to be that you - you do not have another court commitment on 27 May.
[APPLICANT]: I don't know, Your Honour.
HIS HONOUR: Well - - -
[APPLICANT]: I didn't say that.
HIS HONOUR: Well, I don't understand you to be saying that you have got another court commitment.
[APPLICANT]: Goodness me. How clear can I be?
HIS HONOUR: If you - - -
[APPLICANT]: You're annoying me.
HIS HONOUR: If you want to make an application on 27 May that the matter not proceed because you're not in a position to proceed - well, I'll obviously listen to any application that you make. But the orders that I will make is that the matter is listed for hearing on 27 May. And any further submissions you wish to make are to be filed by 10 May. And any responding submissions to be filed by 17 May by the defendants. And we'll proceed on 27 May. All right. All right.[15]
33 The applicant continued to request that the trial take place at a later date. McDonald J asked him why it would be unfair for the trial to take place on 27 May 2019. In response, the applicant stated that he had only recently received Judge Mullaly's ruling, which confirmed that he accepted the evidence of Ms Tull and Mr Bond in proof of the charges against him, and that he needed time to prepare his case. He stated that the evidence of Ms Tull and Mr Bond was inconsistent with evidence they had given after the hearing before Judge Mullaly, and that he wanted to rely on those inconsistencies to demonstrate that Judge Mullaly was wrong to accept their evidence.
34 McDonald J pointed out that, although the applicant had only recently received Judge Mullaly's ruling, he had already relied upon the inconsistencies in the evidence of Ms Tull, Mr Bond and the first respondent in ground 5 of his originating motion.[16] The applicant responded that he had been unable to define the inconsistencies until after he received the ruling. The judge then made the following ruling refusing the applicant's application for an adjournment:
Mr Russell, on the basis of the material presently before this court, I am not satisfied that you would be prejudiced if the matter was to proceed to a hearing on 27 May. As I understand your submission, it is that you need a longer period of time to prepare for a hearing than the one month - or thereabouts - adjournment which I am proposing because you have only recently been provided with the transcript of Judge Mullaly's ruling, which is at p. 68 of the transcript of the proceedings on 28 August 2017.
That ruling is self-explanatory. In substance, Judge Mullaly concluded that he accepted the evidence led on behalf of the prosecution. That is, the evidence of the witnesses Ms [Tull] and Mr Bond, as proving the charges of unlawful assault and trespass. Although you did not have a copy of that ruling at the time you filed your originating motion on 26 September 2017, the grounds contained in that originating motion expressly address the basis of Judge Mullaly's reasons.
That is, you - at ground 5 - have set out your claim that there are numerous inconsistencies within the informant and witnesses [Tull] and [Bond] in sworn evidence. So you have already addressed a challenge - the basis of your challenge - to Judge Mullaly's conclusion, that he accepted the evidence of Ms [Tull] and Mr Bond.
If you want to augment the material which you have filed, addressing that particular issue or any other issue, I am giving you the opportunity to do so by granting you leave to file any further submissions by 4 pm on 10 May.
So, in these circumstances and in the absence of you providing any indication to the court that you have another commitment in court or elsewhere on 27 May - which makes it impractical for the case to proceed on that date - in those circumstances, I intend to set the matter down for hearing on 27 May at 10.30 am.[17]
35 After McDonald J delivered his ruling, the applicant said that, although he alleged inconsistencies in the evidence in his originating motion, he had not elaborated on what they were. The following exchange then took place:
HIS HONOUR: Well, you have the opportunity to do so in the further submission you can file by 10 May, Mr Russell.
[APPLICANT]: And what effect would that have? Would you reconsider your stance on your controlling this case, or would you be agreeable to have the matter heard before another judge? Would there be an objection to that?
HIS HONOUR: My present intention is to hear the case on 27 May. That's my present intention.
...
HIS HONOUR: Nothing in life is set in stone, Mr Russell.
[APPLICANT]: Well, I'm just saying to you - - -
HIS HONOUR: I might be run over by a bus tomorrow.
[APPLICANT]: Is there a realistic - is it a realistic possibility that you might change your mind on this once having a submission showing all of the difficulties I have, which were bringing me up to those dates and (indistinct) those dates would - - -
HIS HONOUR: Mr Russell, I've already indicated - - -
[APPLICANT]: - - - not allow me to produce - - -
HIS HONOUR: - - - that if you want to make an application for further adjournment of the proceeding, then I'll listen to that application and I'll consider any material that you file in support of it.
[APPLICANT]: Well, that may be the avenue.[18]
36 The judge then gave directions for the filing of further material in accordance with the timetable he had already indicated and adjourned the proceeding until 27 May 2019.
37 It is noteworthy that the reason the applicant gave for seeking an adjournment of the trial was the need for him to prepare his case in the light of Judge Mullaly's ruling which he had received recently. Unlike his earlier application for an adjournment,[19] on 26 April 2019 the applicant did not rely on his mental state or the absence of legal representation in support of his application for an adjournment.
Events between the directions hearing on 26 April 2019 and the trial on 27 May 2019
38 Following the directions hearing on 26 April 2019, the applicant wrote to the Registry on several occasions requesting an adjournment on various grounds. The grounds included that he was unwell, he sought the inclusion of the 1,500-page court book, he was seeking pro bono legal assistance, and he had other commitments. Those commitments were a review in the Victorian Civil and Administrative Tribunal on 24 May 2019 and a County Court directions hearing on 28 May 2019.
39 As set out at [11] above, on 2 May 2019, the applicant sought to have McDonald J recuse himself on the ground of apprehended bias. Among other things, the applicant complained that the judge 'was selected to bring a speedy outcome & with his "feisty" nature & to the court process-appeal & without an "open mind" for proper legal conduct - towards a self represented person'. The applicant also described the judge as a 'bully boy' and a 'wayward judge', and made a complaint against him to the Judicial Commission of Victoria ('JCV'). In a 'memo' to a Registry officer dated 24 May 2019, the applicant stated that, irrespective of the outcome of the trial, he 'will continue with the conduct claims against [McDonald J] with the JCV & with the prospect of a formal Appeal should [he] receive any Adverse Decision of [McDonald J]'.
40 As set out at [12] above, the applicant did not appear at the trial on 27 May 2019. The hearing lasted a few minutes, occupying only three pages of transcript. Counsel for the first respondent sought an order that the judicial review application be dismissed for want of prosecution. McDonald J refused to make such an order, deciding instead to determine the application on its merits on the basis of the written submissions that had been filed to that date.
41 McDonald J's reasons of 26 July 2019 set out why he did not accept the applicant's further submissions in support of an adjournment to the trial date. He said that, whilst the applicant suffered from chronic psychiatric conditions, there was no contemporaneous medical evidence of acute illness or exacerbation of any existing conditions.[20] As to the applicant's other commitments, the judge stated that the applicant did not contend that he had any on 27 May 2019.[21] In relation to the applicant's contention that an adjournment was required in order for him to obtain legal advice, the judge agreed with the reasons of Judicial Registrar Clayton for denying an application for an adjournment on 2 April 2019.[22]
42 In relation to the applicant's application for McDonald J to recuse himself on the ground of apprehended bias, the judge held that the applicant had not identified any matters that might cause a reasonable bystander to apprehend that he might not bring an impartial mind to the resolution of the questions raised in the proceeding. In particular, he stated:
I am not aware of any matters that are incompatible with impartiality in fact or appearance. I have no interest in the litigation nor any personal association with any party in the proceeding. I have not prejudged the matter and have no actual bias against [the applicant]. ...
I am not satisfied that a reasonable bystander might apprehend that I might not be impartial from my conduct during the directions hearing on 26 April 2019. I expressed a desire that the matter be set down for hearing as quickly as possible, consistent with the overarching purpose of the Civil Procedure Act to facilitate the just, efficient, timely and cost-effective resolution of the real issues in dispute.
...
The transcript records that I requested that [the applicant] not interrupt me and reminded him not to speak disrespectfully to the Court. I am satisfied that my requests are not such that they might cause a reasonable bystander to apprehend that I might not be impartial.[23]
43 As to the substantive judicial review proceeding, McDonald J gave consideration to the written submissions and other material that the applicant had filed in support of his grounds of appeal.
44 McDonald J considered that, having regard to the fact that during the County Court appeal the applicant was represented by senior counsel (Mr Twigg), his submission that he was under duress was without merit.
45 In relation to the alleged error of law, McDonald J stated that the applicant had failed to identify how Judge Mullaly had erred in law.
46 McDonald J found that the applicant was not denied procedural fairness in the County Court proceeding. He stated that the applicant knew the case against him, was afforded the opportunity to give evidence in his defence and, through counsel, had the opportunity to cross-examine witnesses and make submissions on the law.
47 In response to a contention raised by the applicant that Judge Mullaly's decision was tainted by apprehended bias, McDonald J stated that he was not satisfied that a reasonable bystander might apprehend that Judge Mullaly might not bring an impartial mind to his decision. McDonald J considered the transcript of the County Court proceeding and said that he was satisfied that the applicant was afforded a fair hearing in every respect.[24]
48 McDonald J then dealt with the applicant's contention that his judicial review application should succeed because he had strong grounds of defence on the basis that his conduct in the Yea Library was in self-defence and/or to obtain his property. The judge stated that this defence was raised before Judge Mullaly and was rejected by him on the facts. McDonald J went on to say that the applicant's desire to re-agitate the same defences misapprehended the nature of judicial review by the Supreme Court, as such a review was not a hearing de novo and did not extend to reviewing the merits of Judge Mullaly's decision.[25] That decision was that the defences were not open on the facts because: the property consisted of documents printed on Council paper from a Council machine; the applicant was trespassing at the time; and self-defence did not arise absent a threat to the applicant or his property. McDonald J said further that Judge Mullaly's decision was plainly open on the facts and was supported by an evident and intelligible justification.[26]
49 As to the applicant's argument that there was inconsistent evidence given by Ms Tull and Mr Bond before Judge Mullaly, McDonald J stated that this ground impermissibly invited the Court to engage in merits review. He stated that it was open to Judge Mullaly to find that charges 1 and 3 were proven on the evidence given by Ms Tull and Mr Bond and to prefer their evidence to that of the applicant.[27]
50 The applicant relied on the following grounds of appeal:
51 The above grounds of appeal were set out in an amended application for leave to appeal dated 15 July 2020 that was prepared by Harlis Kirimof of counsel acting on a pro bono basis for the applicant pursuant to the Victorian Bar Duty Barristers' Scheme. That amended application replaced the application dated 12 August 2019 that was prepared by the applicant and which contained five grounds of appeal.
52 The applicant's amended written case dated 15 July 2020 in support of the amended application for leave to appeal was also prepared by Mr Kirimof. However, the amended written case was supplemented by a document titled 'Applicant's further amended case for leave of appeal' and dated 15 July 2020, which was prepared by the applicant. I discuss the contents of that document, and whether it forms part of the application for leave to appeal, at [106]-[119] below.
53 The original application book was replaced by a two volume application book. I have considered all the documents in the new application book. Some of the documents were duplicates whilst others were not relevant to the amended application for leave to appeal.
54 I note that, in accordance with the usual practice, the County Court did not participate in the proceeding before this Court.
Grounds 1 and 2: Judge's refusal of adjournment and recusal applications
55 As the applicant's contentions regarding grounds 1 and 2 overlap, I will consider them together.
Statutory provisions and legal principles relevant to grounds 1 and 2
56 Part 2 (ss 7-27) of the Charter of Human Rights and Responsibilities Act 2006 ('Charter') sets out certain human rights. Sections 8(3) and 24(1) of the Charter upon which the applicant has relied contain the following human rights:
8 Recognition and equality before the law
...
(3) Every person is equal before the law and is entitled to the equal protection of the law without discrimination and has the right to equal and effective protection against discrimination.
...
24 Fair hearing
(1) A person charged with a criminal offence or a party to a civil proceeding has the right to have the charge or proceeding decided by a competent, independent and impartial court or tribunal after a fair and public hearing.
57 In Trkulja v Markovic,[28] this Court stated that a judge's duty to assist a self-represented litigant is flexible and will depend upon the circumstances of the litigant and the nature and complexity of the case. Those circumstances include the litigant's age, physical and mental health, level of education, proficiency in the English language, level of intelligence, personality, experience, understanding of the case and whether he or she is legally qualified.[29] The Court explained the judge's duty as follows:
In determining the proper scope of assistance to be offered to a self-represented litigant, the touchstones are fairness and balance. The assistance may extend to issues concerning substantive legal rights as well as to issues concerning the procedure that will be followed. In some cases, it may be necessary for the judge to identify the issues and the state of the evidence in relation to them so as to enable the self-represented litigant to consider whether he or she wishes to adduce evidence. It is elementary that a judge ought to ensure that the self-represented litigant understands his or her rights so that he or she is not unfairly disadvantaged by being in ignorance of those rights. Notwithstanding this, the judge should refrain from advising a litigant as to how or when he or she should exercise those rights.
...
It is clear that a judge cannot become the advocate of the self-represented litigant. This is because the role of a judge is fundamentally different to that of an advocate. Further, a judge must maintain the reality and appearance of judicial neutrality at all times and to all parties. Accordingly, the restraints upon judicial intervention stemming from the adversary tradition are not relevantly qualified merely because one litigant is self-represented.[30]
58 In Ebner v Official Trustee in Bankruptcy,[31] the plurality stated the principle for determining whether a judicial officer should recuse himself or herself on the ground of apprehended bias as follows:
Where, in the absence of any suggestion of actual bias, a question arises as to the independence or impartiality of a judge ... the governing principle is that, subject to qualifications relating to waiver ... or necessity ... 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.[32]
59 The principle of apprehended bias is not engaged merely because a judge expresses preliminary views in the course of a hearing. However, the principle is engaged where the nature of the preliminary views, the manner in which they are expressed and the circumstances as a whole show that the judge is unwilling to depart from them irrespective of the evidence and the submissions of the parties.[33]
60 In the present case, McDonald J's refusal to adjourn the trial date involved the exercise of a discretion. Accordingly, ground 1 can only succeed if the applicant demonstrates that the refusal involved an error of the type described in House v The King.[34] Those errors include acting upon a wrong principle; being guided or affected by extraneous or irrelevant matters; mistaking the facts; and failing to take into account a material consideration.[35] Appellate intervention will also be warranted where the exercise of the discretion is, upon the facts, plainly unjust.[36] That will be so where refusal of an application for an adjournment would cause injustice to the party making the application but would not cause any prejudice to the other party or any resultant prejudice would be capable of being remedied by an appropriate order as to costs or otherwise.[37]
61 The applicant submitted that, in refusing his application, made at the directions hearing on 26 April 2019 and subsequently, for the trial to be adjourned until after 27 May 2019, the judge committed an error of the kind set out in House v King and thus his discretion miscarried.
62 The applicant argued that the judge's decision was based on an irrelevant consideration, namely, that he was moving out of the Common Law Division into the Commercial Court.
63 The applicant contended that the judge's refusal of the application for an adjournment deprived him of a reasonable opportunity of appearing and presenting his case. The refusal was also said to have contravened the judge's duty to assist the applicant as a self-represented litigant and his human rights set out in ss 8(3) and 24(1) of the Charter.
64 In support of these contentions, the applicant emphasised that the judge was aware that the applicant suffered from chronic psychiatric conditions and that it would have been obvious that he was an elderly individual. He argued that his exchanges with the judge at the directions hearing on 26 April 2019 plainly indicated that he did not appreciate the types of considerations relevant to an adjournment and the desirability of admissible evidence supporting his adjournment application. According to the applicant, as the judge did not explain these matters to him, his oral submissions for an adjournment on that day and his subsequent written submissions were not pertinent or clearly directed to the prejudice he would suffer if an adjournment were not granted. The judge was also said to have failed to explain that the hearing could continue in the applicant's absence, which in fact occurred.
65 The applicant submitted that the transcript indicates that the judge was aware at the hearing on 27 May 2019 that the applicant had sent correspondence to the Court in which he made a further application for an adjournment and an application that the judge recuse himself on the basis of apprehended bias. According to the applicant, the judge proceeded to determine the judicial review application on the basis of the parties' submissions without contacting the applicant on that day or providing any assistance to him as to the test for an apprehended bias application.
66 The applicant argued that, although the judge's obligation to assist him as a self-represented litigant and his rights under the Charter were 'plainly relevant and important considerations', the judge did not at any stage expressly consider them. The applicant also argued that the judge decided the judicial review application without having provided any assistance to him as to the substantive test pertaining to that application.
67 The applicant summarised his submissions in support of ground 1 as follows:
[H]is Honour's failure to adjourn the matter on 26 April 2019, and 27 May 2019, miscarried because:
68 In relation to ground 2, the applicant submitted that a fair-minded lay observer who had observed the judge's refusal of the applicant's adjournment application might have reasonably apprehended that the judge might not bring an impartial mind to the resolution of the question that the judge was required to decide. The circumstances that were said to give rise to the apprehension of bias were confined to the judge's conduct at the directions hearing on 26 April 2019. The applicant referred to the following three matters:
First, his Honour set down the matter for trial without giving the applicant a sufficient opportunity to address the matter. The transcript on pages 267 to 275 of the Application Book clearly reveals a determination to set down the matter 'for hearing as quickly as possible'. That in itself does not give rise to an apprehension of bias. However, on occasions, the transcript suggests that his Honour cut off the applicant from developing his submissions: T3 L21, T3 L30, T4 L3. His Honour proceeded to list the matter for hearing despite the applicant intending to make submissions: T7 L6-7. His Honour chose the particular date of hearing without hearing from the parties: T7 L7-11.
Secondly, the applicant relies on the following statements (emphasis added): 'As a practical matter, it is to be heard and determined by 30 June, and there's no reason why that can't happen, and it's going to happen. All right? So let's all get on the same page.' Those statements tend to suggest that his Honour had closed his mind to the issue of adjourning the matter beyond 30 June.
Thirdly, his Honour made the comment that he was moving to a different division of the court: 'Well, it is a matter of urgency, Mr Russell, in the sense that I am moving out of the Common Law Division into the Commercial Court'. By itself, that would not give rise to an apprehension bias, but it does when taken together with the other circumstances, and the exchanges leading up to the matter being set down for trial (at T7 L9).
69 The applicant submitted that, when the above circumstances are taken together, a fair-minded lay observer may have perceived that the judge's refusals of the adjournment applications manifested a closed mind to the question of whether the trial should be adjourned to a date after 30 June.
70 According to the applicant, a fair-minded lay observer would not have apprehended that the judge had merely formed a tentative view or was testing argument about the appropriateness of an adjournment. Rather, so it was said, a lay observer, having heard the judge's statements and without giving the applicant an opportunity to fully expound his reasons for an adjournment, may have apprehended that the judge had pre-determined that the hearing must proceed before him prior to 30 June 2019.
71 The applicant acknowledged that, after the proceeding had been set down for trial on 27 May 2019, the judge engaged in a 'more open discussion' by, for example, stating that he wanted the proceeding to be heard 'in a time frame which is fair to both parties'. However, according to the applicant, as this discussion took place after the judge had fixed the hearing date in the light of his anticipated transfer to the Commercial Court, the 'damage was done' and the discussion 'did not cure the apprehension of bias that was raised by the earlier circumstances of the hearing'.
72 The first respondent submitted that the transcript of the directions hearing on 26 April 2019 demonstrates that McDonald J: twice invited the applicant to explain why he would be disadvantaged by the trial proceeding on 27 May 2019; directed the applicant's attention to the key issue of prejudice; gave the applicant every opportunity to address him on the issue; and informed the applicant that he could make a further application for an adjournment on 27 May 2019.
73 The first respondent contended that it was appropriate for McDonald J to desire to list the proceeding for hearing promptly in the light of the timing of the events the subject of the proceeding and the hearings in the Magistrates' Court and the County Court, as finality in litigation was important. The first respondent also contended that it was appropriate for McDonald J to desire to hear the matter while he was in the Common Law Division and that he did not allow this consideration to outweigh the interests of justice.
74 The first respondent argued that McDonald J's discretion to refuse the applicant's application for an adjournment did not miscarry and the applicant was afforded a fair hearing in accordance with the judge's duty to assist him as a self-represented litigant and consistent with his rights under the Charter.
75 The first respondent submitted that McDonald J did not err in refusing to recuse himself. The first respondent contended that, although the judge began by indicating he wanted to list the matter promptly, once the applicant sought an adjournment, the judge gave him a full opportunity to present his argument. Accordingly, so it was said, a fair-minded lay observer would not have understood that the judge had a closed mind on the issue of an adjournment and failed to decide the issue on its merits.
76 The logical starting point for consideration of grounds 1 and 2 is the nature of the hearing before McDonald J on 26 April 2019 and the issues to be determined at that hearing. The hearing was a directions hearing to deal with case management issues, such as the trial date and any outstanding interlocutory procedures that needed to be completed prior to trial. The merits of the judicial review proceeding did not fall to be determined at the directions hearing.
77 The transcript of the directions hearing indicates that McDonald J desired to fix the proceeding for trial and determine it prior to 30 June 2019 due to a 'practical matter', namely, his departure from the Common Law Division on 30 June 2019. Contrary to the applicant's submission, that departure was not an irrelevant consideration. As the judge had prior involvement in the proceeding and was familiar with it, it was highly desirable, from a case management perspective, for him to conduct the trial. Accordingly, the fact that the judge was due to leave the Common Law Division was relevant to the question whether he should conduct the trial prior to his departure from that division.
78 Although McDonald J used the emphatic phrase 'it's going to happen' to express his desire that the trial take place promptly, when the applicant indicated that he needed more time to prepare his case, the judge engaged in a lengthy exchange with him for the purpose of understanding why he needed more time and why he would be prejudiced by the proposed timeframe. That exchange demonstrated a willingness by the judge to understand the basis of the applicant's application for an adjournment and a preparedness to depart from his initial position in the light of the applicant's submissions.
79 In the course of the exchange, McDonald J twice invited the applicant to explain why he would be disadvantaged by the trial proceeding on 27 May 2019. In response, the applicant referred to the need for him to consider Judge Mullaly's ruling which the applicant had received only recently. The judge emphasised that the ruling comprised a single page and its contents merely confirmed what the applicant already knew, namely, that Judge Mullaly had found the charges of assault and trespass proven on the basis of the evidence of Ms Tull and Mr Bond.
80 The judge's approach was entirely reasonable. The applicant was challenging the decision of Judge Mullaly made on 28 August 2017. He commenced his judicial review proceeding on 26 September 2017. He was present at the hearing on 28 August 2017 and was aware of the factual and legal issues determined adversely to him by Judge Mullaly for a period of over 20 months prior to the hearing on 27 May 2019. The written version of the ruling of Judge Mullaly did not add anything of substance to the applicant's understanding of those factual and legal issues.
81 When the applicant stated that Judge Mullaly's decision was wrong because of inconsistencies in the evidence of Ms Tull and Mr Bond and that of the first respondent, the judge explained to him that he had already relied upon the inconsistencies in ground 5 of his originating motion.
82 Prior to making orders on the case management issues to be determined at the directions hearing, McDonald J sought - and obtained - confirmation from the applicant that he did not have any other competing court commitments on 27 May 2019. The judge also informed the applicant that the trial being heard by him on 27 May 2019 was not 'set in stone' and that the applicant could make a further application for an adjournment on 27 May 2019. In response, the applicant stated 'Well, that may be the avenue'.
83 Despite being aware of the trial date of 27 May 2019 and that he could apply for a further adjournment on that day, the applicant did not attend the trial to either argue the merits of the judicial review proceeding or make a further application for an adjournment. That was the choice that he made. The judge was not obliged to make inquiries as to why the applicant had not attended. Rather, it was a matter for the applicant to inform the Court in advance - or as soon as possible afterwards - if there was a legitimate reason as to why he could not attend the trial. He did not do so.
84 In those circumstances, McDonald J was entitled to proceed to decide the judicial review application on the basis of the written submissions that had already been filed. It is to be noted that the judge rejected the first respondent's submission at the hearing on 27 May 2019 that the judge should dismiss the proceeding for want of prosecution and, instead, insisted on determining it on the merits based on the parties' written submissions. The judge took time to consider the submissions, publishing his reasons nearly two months later.
85 McDonald J's reasons show that he carefully and fairly dealt with the further applications for adjournment that the applicant made in correspondence between 26 April 2019 and 27 May 2019.
86 In all the circumstances, I am not satisfied that McDonald J's refusal to grant an adjournment caused any injustice to the applicant. The issues in the judicial review application were not overly complicated and the applicant was aware of them. The proceeding related to events that occurred on 13 April 2016, the proceeding was commenced on 26 September 2017 and the trial had been adjourned twice already. It was in the interests of the parties as well as the administration of justice for the proceeding to be finalised as soon as practicable provided injustice was not caused to any party.[38] No such injustice has been shown.
87 I reject the applicant's submission that McDonald J failed to assist him by not explaining the principles of judicial review. The appropriate occasion for such an explanation was the trial on 27 May 2019, when the merits of the judicial review proceeding were to be considered. As the applicant chose not to attend the trial, the need to provide such an explanation did not arise. As I have already stated, at the directions hearing on 26 April 2019, when the applicant raised the merits of the judicial review proceeding, the judge explained to him that he would have the opportunity to discuss the merits at trial.
88 For the above reasons, I am not satisfied that the applicant has demonstrated that McDonald J's refusal to grant an adjournment was vitiated by error of the kind set out in House v The King. Accordingly, I am not satisfied that the judge's exercise of his discretion miscarried.
89 I reject the applicant's submission that McDonald J did not discharge his duty to assist him as a self-represented litigant. The transcript of the directions hearing on 26 April 2019 demonstrates that the judge informed the applicant that he needed to identify the reasons why he would be disadvantaged by the proceeding being fixed for trial on 27 May 2019, and engaged with him on his reasons. In particular, the judge explained that, notwithstanding that Judge Mullaly's ruling had been provided only recently, it simply confirmed what the applicant already knew. Nevertheless, the judge gave the applicant an opportunity to file further submissions in the light of the ruling.
90 The transcript also demonstrates that, on several occasions, the applicant launched into a discussion of the merits of the judicial review proceeding, particularly concerning inconsistencies in the evidence of Ms Tull, Mr Bond and the first respondent. On those occasions, the judge explained to the applicant that he would have an opportunity to deal with those matters in further written submissions and at the trial and that they were not issues for determination at the directions hearing. In doing so, the judge provided appropriate guidance to the applicant about the subject matter of the directions hearing and the matters that the applicant should address at that hearing.
91 I have considered the medical evidence that forms part of the material before this Court. That evidence does not indicate that the applicant lacked the capacity to represent himself before McDonald J. Indeed, the transcript of the directions hearing on 26 April 2019 shows that the applicant was articulate, confident about the justice of his case and not reticent in telling the judge when he disagreed with him.
92 In my opinion, McDonald J conducted the directions hearing in a manner that was consistent with his duty to assist the applicant as a self-represented litigant.
93 I reject the applicant's submission that McDonald J erred in refusing to recuse himself. As I have already stated, the issues the judge had to determine on 26 April 2019 were case management issues. Despite initially expressing a strong view about the trial being fixed promptly, as the directions hearing progressed, the judge explored at length with the applicant his reasons for seeking an adjournment and addressed those reasons fairly and impartially. He also informed the applicant that he could make a further application for an adjournment on 27 May 2019. The applicant acknowledged this by stating 'Well, that may be the avenue'.
94 As appears from [27]-[35] above, there were certain times during the directions hearing on 26 April 2019 at which the applicant and McDonald J clashed. However, a fair-minded lay observer present at the directions hearing would not reasonably apprehend that the judge might not bring an impartial mind to the resolution of the case management issues he[39]as required to decide.39 Rather, a fair-minded lay observer would conclude that the judge was seeking to ensure that the hearing was conducted respectfully and efficiently, and that the applicant remained focused on what was relevant to the proceeding.
95 I have considered the judge's reasons for refusing to recuse himself. They do not disclose any error.
96 Section 24(1) of the Charter upon which the applicant relied did not add anything of substance to the duties of McDonald J to be impartial, to assist the applicant as a self-represented litigant and to ensure that all hearings before the judge were conducted fairly to both parties, which I have already discussed. For the reasons I have already provided, the judge was impartial, provided appropriate assistance to the applicant and afforded him a fair hearing. It is unclear why the applicant has relied upon s 8(3), as he did not allege that the judge discriminated against him in any way. In any event, there is no evidence of any discrimination or non-compliance with s 8(3) on any other basis.
97 For the above reasons, grounds 1 and 2 are totally without merit.
98 An accused in a criminal proceeding does not have a common law right to be legally represented at public expense.[40]
99 However, in Dietrich v The Queen,[41] the majority of the High Court held that, in order to ensure a fair hearing, a court has power to adjourn, postpone or stay a criminal prosecution of a serious offence until legal representation is available for an indigent accused who has been unable to obtain legal representation through no fault of his or her own.[42]
101 The applicant submitted that he was denied a fair trial because he was not 'provided with publicly funded legal counsel'. He acknowledged that this submission 'necessarily demands an extension of the principles in [Dietrich]'.
102 The applicant contended that, as an applicant for judicial review of a County Court criminal appeal, he should have been provided with publicly funded counsel or pro bono assistance, having regard to the following:
104 The principle in Dietrich upon which the applicant relied did not apply to the judicial review proceeding before McDonald J. In any event, as the applicant has acknowledged, where the principle applies, the court does not have power to compel the provision of legal representation. Rather, the court grants a stay. Such a remedy would be counterproductive in a case such as the present where the unrepresented person is the initiator of the legal proceeding. The applicant's contention that 'the only alternative is for the court to procure counsel' is unhelpful because it does not identify any power on the Court to do so.[46]
105 The history of the present proceeding demonstrates that the applicant was aware of the availability of legal assistance through the Victorian Bar Duty Barristers' Scheme. He was represented by Jeremy Twigg QC at the County Court trial pursuant to that scheme. In submissions dated 13 December 2018, the applicant stated that he 'will attempt to obtain legal pro bono advice with the Court's assistance as [his] current QC is only active in Corporate Law (Michael Gronow) & Jeremy Twigg in Planning Law'. Judicial Registrar Clayton correctly stated on 2 April 2019 that the applicant was aware of the availability of pro bono legal assistance.[47] Importantly, at the directions hearing on 26 April 2019, in response to a question from McDonald J as to whether he had applied for legal assistance, the applicant stated that he had done so.[48] The judge urged him to try to obtain legal representation.[49] The applicant had ample opportunity to obtain pro bono legal assistance. In these circumstances, there was no departure from the principles of natural justice on the part of the judge.
106 As stated at [52] above, the applicant supplemented the amended written case that was prepared by his counsel, Mr Kirimof, with the following document that was prepared by him:
APPLICANT'S FURTHER AMENDED WRITTEN CASE FOR LEAVE OF APPEAL
Background
That the applicant stands by his amended written case.
Contentious & proposed grounds of appeal
107 In my opinion, this document does not form part of the application for leave to appeal. That is because, having availed himself of the assistance of counsel (Mr Kirimof) who drafted his amended application for leave to appeal and amended written case, those documents are the exclusive repository of the issues to be determined in the application. It is not possible for the applicant to agitate an additional set of issues outside the framework of his application for leave to appeal and written case.
108 In any event, having considered the applicant's nine additional paragraphs I am firmly of the view that they are totally without merit.
109 It appears from para 9 of the additional paragraphs that the applicant wishes to rely upon a fourth ground of appeal, namely:
[T]hat the trial judge further erred in failing to apply reasonable discretion in compliance with the whole of the circumstances known & as an obligation to uphold the law & with the benefit of unequivocal evidence as the known Record & without a perceived bias or reckless indifference to proper process, as is evident.
110 The purported additional ground in para 9 appears to complain that McDonald J did not have regard to all the available evidence, was not impartial and disregarded proper process. The first eight paragraphs complain about McDonald J's decision to exclude the 1,500-page court book pertaining to the 'parallel action' from the material to be considered in the judicial review proceeding. They also allege that Judge Mullaly erred in accepting the evidence of Ms Tull, Mr Bond and the first respondent because the inconsistencies within that evidence, and between that evidence and statements made by these witnesses on other occasions, rendered their evidence false and perjurious.
111 The applicant's additional contentions fail to have regard to the fact that McDonald J was dealing with an application for judicial review of Judge Mullaly's decision rather than an appeal from that decision. For that application to succeed, the applicant had to establish that Judge Mullaly's decision was vitiated by jurisdictional error or error of law on the face of the record. Unlike merits review conducted by some tribunals, in a judicial review application, the Supreme Court does not assess the merits of the decision being reviewed but considers only whether the court at first instance exceeded its jurisdiction or failed to observe the law in reaching its decision.[51]
112 I reject the applicant's contention that McDonald J erred by failing to have regard to all the available evidence.
113 McDonald J's decision to exclude the 1,500-page court book pertaining to the parallel action was clearly correct. In the judicial review proceeding, the question for McDonald J was whether Judge Mullaly made a vitiating error on the evidence adduced - and the submissions made - by the parties before him in relation to the events at the Yea Library on 13 April 2016. It was not the role of McDonald J to review Judge Mullaly's decision in the light of additional evidence and legal contentions that were not before him. That was particularly so in relation to evidence concerning subsequent events.
114 Furthermore, Judge Mullaly's decision to accept the evidence of Ms Tull, Mr Bond and the first respondent, and to prefer their evidence to that of the applicant, was made within his jurisdiction as the finder of fact. As I have stated at [6] and [7] above, at the County Court trial, senior counsel for the applicant, Mr Twigg, did not put to Ms Tull and Mr Bond any inconsistencies in their evidence and he did not submit that the prosecution evidence was unreliable due to inconsistencies. Nor did Mr Twigg submit that the applicant's evidence should be preferred. Indeed, Mr Twigg confirmed that the contents of the statements of evidence of the first respondent and of the chief executive officer of the Council were admitted. McDonald J was right to conclude that Judge Mullaly's decision did not involve any error that warranted the granting of relief to the applicant.
115 I also reject the applicant's contention that McDonald J was not impartial.
116 I have already explained in the context of grounds 1 and 2 why I have concluded that the judge conducted the directions hearing on 26 April 2019 fairly and impartially. In addition to the transcript of that directions hearing, I have also considered the transcripts of the hearings on 8 April 2019 and 27 May 2019. There is nothing in those transcripts which in any way suggests a lack of impartiality by McDonald J.
117 When the applicant failed to attend the hearing on 8 April 2019, the judge was careful to ensure that the applicant's interests were not prejudiced by his absence by directing that Judge Mullaly's ruling of 28 August 2017 be provided to the applicant. Similarly, at the hearing on 27 May 2019, the judge refused to dismiss the proceeding for want of prosecution due to the applicant's absence. Nor did he conduct an oral hearing in the applicant's absence. Instead, he adjourned the hearing and determined the proceeding on its merits based on the written submissions that had been filed to that date. As a result, the applicant's decision not to attend the hearing on 27 May 2019 did not place him at a disadvantage vis-a-vis the first respondent.
118 I have considered McDonald J's reasons of 26 July 2019 for dismissing the applicant's judicial review proceeding. Those reasons indicate that the judge carefully and impartially considered the applicant's grounds of review and the evidence and submissions upon which he relied in support of those grounds.
119 Finally, I reject the applicant's contention that McDonald J disregarded proper process. The applicant has not articulated the basis upon which the conduct of the judge constituted a departure from proper process. Having carefully considered all available transcripts and the judge's reasons, I am unable to discern any such basis.
120 For the above reasons, I have determined that the application for leave to appeal is totally without merit and I will make an order dismissing it.[52]
[1] The applicant filed his notice of appeal on 21 March 2017, well after the expiration of 28 days from the magistrate's order dated 14 November 2016.
[2] Transcript of Proceedings (28 August 2017) 43.8-43.10.
[3] Transcript of Proceedings (28 August 2017) 68.1-68.29.
[4] Russell v Eaton [2019] VSC 464 ('Reasons').
[6] See s 14D(3) of the Supreme Court Act 1986.
[7] The applicant also filed a supplementary report of Dr Weissman dated 1 July 2007.
[9] Transcript of Proceedings (26 April 2019) 3.8-3.12, 3.19-4.13.
[10] Transcript of Proceedings (26 April 2019) 5.25-7.11.
[11] Transcript of Proceedings (26 April 2019) 13.4-14.28.
[12] Transcript of Proceedings (26 April 2019) 17.10.
[13] Transcript of Proceedings (26 April 2019) 17.28-18.12.
[14] Transcript of Proceedings (26 April 2019) 20.7-20.28.
[15] Transcript of Proceedings (26 April 2019) 21.24-22.27, 23.12-23.16, 24.1-25.2.
[17] Transcript of Proceedings (26 April 2019) 36.4-37.8.
[18] Transcript of Proceedings (26 April 2019) 38.24-38.31, 39.4-39.18.
[23] Reasons [27]-[28], [31] (citations omitted).
[28] [2015] VSCA 298 ('Trkulja').
[29] Trkulja [2015] VSCA 298, [37]-[38].
[30] Trkulja [2015] VSCA 298, [39], [41] (citations omitted).
[31] (2000) 205 CLR 337; [2000] HCA 63 ('Ebner').
[32] Ebner [2000] HCA 63; (2000) 205 CLR 337, 344 [6]; [2000] HCA 63 (citations omitted).
[33] See, eg, Antoun v The Queen [2006] HCA 2; (2006) 224 ALR 51, 58 [27], 59 [29], 60 [33], 76 [81], 78 [87]; [2006] HCA 2.
[35] House v The King (1936) 55 CLR 499, 505; [1936] HCA 40.
[36] House v The King (1936) 55 CLR 499, 505; [1936] HCA 40.
[37] See Brimbank Automotive Pty Ltd v Murphy [2009] VSC 26, [12]; SM v The Queen [2011] VSCA 332; (2011) 33 VR 393, 398 [22]; [2011] VSCA 332.
[38] See Civil Procedure Act 2010 ss 7(1), 9(1)(f).
[39] Ebner [2000] HCA 63; (2000) 205 CLR 337, 344 [6]; [2000] HCA 63.
[40] Dietrich v The Queen [1992] HCA 57; (1992) 177 CLR 292, 297-8, 311, 330, 356, 364; [1992] HCA 57 ('Dietrich'). See also Slaveski v Smith [2012] VSCA 25; (2012) 34 VR 206, 220-1 [52]-[53]; [2012] VSCA 25.
[42] Dietrich [1992] HCA 57; (1992) 177 CLR 292, 297-8, 311-12, 315, 331, 356-7; [1992] HCA 57.
[43] New South Wales v Canellis [1994] HCA 51; (1994) 181 CLR 309, 328; [1994] HCA 51 ('Canellis').
[44] Canellis [1994] HCA 51; (1994) 181 CLR 309, 328; [1994] HCA 51.
[45] Johns v The Queen (1995) 13 WAR 380, 382.
[46] In the context of a criminal trial on indictment before a jury, see s 197 of the Criminal Procedure Act 2009; Slaveski v Smith [2012] VSCA 25; (2012) 34 VR 206, 219 [43]-[47]; [2012] VSCA 25.
[50] All underlining and errors in original.
[51] Austin v Dwyer [2019] VSCA 296, [88].
Russell
Eaton [2020] VSCA 249
(1995) 13 WAR 380
(1992) 177 CLR 292
(2012) 34 VR 206
(1994) 181 CLR 309
(2000) 205 CLR 337
(2006) 224 ALR 51
(1936) 55 CLR 499
(2011) 33 VR 393