Kiparoglou v A Magistrate - [2023] SASCA 16

Supreme Court of South Australia
(Court of Appeal: Criminal)
KIPAROGLOU v A MAGISTRATE
[2023] SASCA 16
Judgment of the Court of Appeal (ex tempore)
(The Honourable President Livesey and the Honourable Justice Bleby)
9 February 2023
PROCEDURE - STATE AND TERRITORY COURTS: JURISDICTION, POWERS AND GENERALLY - VEXATIOUS LITIGANTS, PROCEEDINGS AND RELATED MATTERS
COURTS AND JUDGES - JUDGES - IMMUNITY FROM PROCEEDINGS
In October 2018, the appellant was issued with an expiation notice for driving in excess of the speed limit. The appellant elected to contest the charge and in August 2019 a prosecution was commenced in the Magistrates Court. The prosecution was later withdrawn after a number of interlocutory hearings and adjournments to the trial date.
In August 2022, the appellant commenced a private prosecution against the sitting magistrate. There were 147 charges on the information.
The appellant appeals from the decision of a District Court Judge (sitting as a magistrate) to strike out each of the charges on the information. The appeal was heard together with an interlocutory application by which the appellant sought, among other orders, leave to add further charges to the information.
The Court held (striking out the amended notice of appeal and dismissing the interlocutory application):
1.The amended notice of appeal, interlocutory application and associated documents were frivolous, vexatious and an abuse of process within the meaning of r 30.3(1) of the Joint Criminal Rules 2022 (SA).
2.The appellant failed to address the Magistrate’s immunity from suit under s 44 of the Magistrates Court Act 1991 (SA).
3.It was appropriate for the Court to make an order restraining the appellant from commencing further criminal proceedings against the Magistrate in connection with the prosecution commenced in the Magistrates Court on August 2019.

Joint Criminal Rules 2022 (SA) r 30.3; Evidence Act 1929 (SA) s 69A; Supreme Court Act 1935 (SA) s 39, referred to.
Fingleton v The Queen (2005) 227 CLR 166; Georganas v Barkla [2021] SASC 47; Hogan v Hinch (2011) 243 CLR 506; Kiparoglou v AZ [2022] SADC 147; Kiparoglou v Dr Azghandi Pty Ltd [2021] SADC 76; Kiparoglou v Dr Azghandi Pty Ltd [2021] SASCA 149; Kiparoglou v Fantinel [2021] SASC 90; Kiparoglou v Fantinel [2021] SASCA 84; Kiparoglou v Police (2021) 97 MVR 161; Kiparoglou v The Queen [2021] SASC 2; Kowalski v Bourne [2012] SASC 6 ; Ryan v Doudle; Ryan v Clough; Ryan v Ward; Ryan v RSPCA [2019] SASC 155; Yeldham v Rajski (1989) 18 NSWLR 48, considered.

KIPAROGLOU v A MAGISTRATE
[2023] SASCA 16
Court of Appeal - Criminal: Livesey P and Bleby JA
THE COURT:
Introduction

An application has been made to strike-out the appellant’s notice and grounds of appeal pursuant to r 30.3(1) of the Joint Criminal Rules 2022 (SA). The appellant is not represented by a lawyer. He is nonetheless articulate, well prepared and prolific in the materials he has produced to the Court.
Though the parties have exchanged written submissions, the appellant has sought an adjournment. In circumstances where the appellant has exhibited such mastery of the material and produced comprehensive written submissions to which he spoke today at some length, no further time should be given.
The appellant brings his appeal against the decision of Judge Slattery striking out 147 counts of alleged criminal wrongdoing made in a private prosecution brought by the appellant against a sitting Magistrate. In addition, the Judge refused permission to amend the Information and to join 13 other proposed defendants. He ordered that the prosecution be stayed.[1] Observations were made about the Magistrate’s immunity from suit pursuant to s 44 of the Magistrates Court Act 1991 (SA). Section 44 states:
[1] Consistently with the decisions of Kowalski v Bourne [2012] SASC 6 (Kourakis J) and Ryan v Doudle; Ryan v Clough; Ryan v Ward; Ryan v RSPCA [2019] SASC 155 (Doyle J).
44—Immunities
(1)A Magistrate, Judicial Registrar, special justice or other person exercising the jurisdiction of the Court has the same privileges and immunities from liability as a Judge of the Supreme Court.
(2)A non-judicial officer of the Court incurs no civil or criminal liability for an honest act or omission in carrying out or purportedly carrying out official functions.
The appellant’s Notice of Appeal has been brought in the Court of Appeal even though the District Court judge was sitting as a magistrate pursuant to s 22 of the Magistrates Act 1983 (SA).[2] The notice and grounds of appeal occupy 94 paragraphs, with numerous sub-paragraphs and over 130 pages. Attached to the notice is an edited version of Judge Slattery’s reasons, incorporating commentary “as part of the appeal written submissions”. This document exceeds 90 pages. There is an Amended Notice of Appeal in substantially similar terms.
[2] Kiparoglou v AZ [2022] SADC 147, [2] (Slattery DCJ). A number of the counts alleged are minor indictable offences whilst others are major indictable offences which were only within the jurisdiction of the District Court of South Australia.
The appellant has been engaged in considerable litigation over the speeding fine and other matters over the last two years.[3]
[3] See Annexure A to these reasons.
It should be noted that the appellant considered making an application for disqualification on the grounds of ostensible bias but did not press it before the hearing.
For the reasons that follow, the Notices of Appeal and associated documents must be struck-out.
Background to the appeal
On 2 October 2018, the appellant was driving in rural South Australia and a police officer later alleged that this was at 113 kph, exceeding the 100 kph speed limit. The appellant was issued with an expiation notice but elected to contest the charge. A prosecution was commenced in the Magistrates Court on 15 August 2019. The trial set for 16 January 2020 did not proceed and in October 2020 another trial was listed for early 2021 with the respondent Magistrate due to hear the matter.
During the course of the prosecution there were a number of interlocutory orders made by the Magistrate about disclosure and other matters. One of these decisions was appealed by the appellant but that appeal was dismissed.[4] Prosecution appeals brought against various other interlocutory orders were likewise dismissed.[5]
[4] Ruling delivered by Lovell J on 4 August 2020.
[5] Annexure A sets out a non-exhaustive procedural history of this matter.
During July 2020, the Magistrate made orders for the provision of medical evidence to support the appellant’s application for adjournment of the trial, and directed the Registrar to contact with the appellant’s general practitioner to obtain evidence on the same topic. The appellant regards the Magistrate’s conduct as unlawful. He remains aggrieved by these matters.
In May 2021, the prosecution was withdrawn.
In October 2020, the appellant applied unsuccessfully for an intervention order against the police officer who reported the appellant for speeding.[6] An appeal against that decision was dismissed by a Judge of the Supreme Court.[7]
[6] Am earlier application for an intervention order against the same police officer was dismissed by a Magistrate in July 2020.
[7] Kiparoglou v Fantinel [2021] SASC 90 (Kourakis CJ).
On 15 August 2022, the appellant commenced his private prosecution against the Magistrate. By an application dated 21 September 2022 various orders were sought by the Crown, representing the Magistrate, and that application was heard by Judge Slattery on 29 September 2022 and his Honour delivered detailed reasons for decision promptly on 14 December 2022.
The reasons of the Judge
Judge Slattery undertook an extensive and careful analysis of each count of criminal wrongdoing in the Information before concluding that it was a proper case for the striking-out of each count pursuant to r 64.1 of the Joint Criminal Rules 2022 (SA) because the various counts did not comply with the rules, were frivolous, vexatious or otherwise an abuse, or did not disclose any offence. Rule 64.1 states:
64.1—Strike out
(1)The Court may strike out a count in an Information if—
(a)     it does not comply with these Rules;
(b)     it is frivolous, vexatious or an abuse of the process of the Court; or
(c)     it does not disclose an offence.
(2)If the Court strikes out a count under subrule (1), it may if it thinks fit grant leave to file within a specified time a revised Information rectifying the matter that caused the count to be struck out.
Although there was power under r 64.1(2) of the Joint Criminal Rules 2022 (SA) to grant leave to file a revised Information, Judge Slattery refused to grant leave to file a revised Information, explaining:[8]
This is because the Information in its current form is so completely and fatally flawed, legally and factually that no amount of amendment could bring the counts to an acceptable condition. As well, a large proportion of them allege major indictable offences which are matters about which the court will be even more vigilant in its approach. The court will always scrutinise the content of any Information such as this with great care. This whole Information document is irredeemable. It’s plain and obvious purpose is to vex and harass the Defendant in her role as a Judicial Officer. It is scandalous.
[8] Kiparoglou v AZ [2022] SADC 147, [260] (Slattery DCJ).
Although he said it was not necessary to express any concluded view, Judge Slattery considered the Magistrate’s immunity from suit pursuant to s 44 of the Magistrates Court Act 1991 (SA), which confers on a magistrate the same privileges and immunities from liability as a Judge of the Supreme Court. His Honour dismissed the appellant’s attempts to allege conduct by the Magistrate other than conduct as a presiding judicial officer and he expressed the view that the statutory immunity operated in favour of the Magistrate.[9]
[9] Relying on Fingleton v The Queen (2005) 227 CLR 166, [34]-[40] (Gleeson CJ).
Ultimately, Judge Slattery held that the “whole Information fails as an abuse of process” and he ordered that it be stayed.[10]
[10] Kiparoglou v AZ [2022] SADC 147, [267] (Slattery DCJ).
Judge Slattery went on to consider the application to join 13 further defendants who comprised various solicitors, a receptionist at a doctor’s surgery, various doctors, police prosecutors, surgeons, the wife of a surgeon and various police officers. If joined, the Information would then comprise over 800 counts. His Honour held that public policy and the proper administration of justice favoured the hearing of separate trials in relation to each defendant.[11] Accordingly, the application for joinder was refused.[12]
[11] Kiparoglou v AZ [2022] SADC 147, [271]-[274] (Slattery DCJ).
[12] Kiparoglou v AZ [2022] SADC 147, [275] (Slattery DCJ).
The appeal notice and grounds of appeal
It is difficult to know where to start with the Notice of Appeal. The orders sought are in the following terms:
1. Leave of the court for a discretionary advance in VOC’s payment – 14 x Defendants x $50,000.00 for the assault(s) with harm, these ALONE spanning over 8+ months = $700,000.00 in VOC’S compensation
2. If leave granted to any discretionary VOC’S compensation, leave requesting 3 installments consisting of…
~ 1st 25% within 7 days of order ($175,000.00) – bank cheque or bank transfer [PayID: TBA]
~ 2nd 25% within 14 – 28 days of order ($175,000.00) – bank cheque or bank transfer [PayID: TBA]
~ 3rd 50% within the courts ordered allocated time or within 90 – 120 days of order ($350,000.00)
3. If leave granted to any discretionary VOC’S compensation the remainder $50,000.00 per defendant ($700,000.00 total) to be revisited upon successful prosecution totaling $100,000.00 per defendant x 14 defendants
4. Overturn “Permanent Stay of Proceedings” … – HH Slattery's decision 29th Sept 2022
5. Leave to accept & file Form 2 information & summons Rev 1.0 & the associated “Summary of offence(s)”
6. Leave to a 1-time amendment of the Form 2 information summons & the associated “Summary of offence(s)”
7. Overturn any & all “Gag Orders” [full open court] & full media disclosure of any names/ranks/positions etc for all the 14 defendants/accused – public interest
8. Joinder of proceedings for all the 14 defendants/accused, same/identical set of circumstances
9. Supreme Court Trial
10. Bail Act 1995 s. 10A, Allegations of Threats or reprisals, Blackmail &/or aid & abet Blackmail, immediate remand of the 12 accused, …, ….
11. Bail Act 1995 s. 10A, Allegation of Blackmail immediate remand of STARKEY, Jason Paul
12. Bail Act 1995 s. 10A, Allegation of Blackmail, immediate home detention with ankle monitor, surrender of passport, monetary assurity to be set by the courts pending arguments, ANDERSON, Neil [clemency due to old age c. 60yo plus – appellant/informant anticipating health reasons to be argued by the respondents counsel]
The grounds of appeal are very difficult to follow and understand. They do not allege error by the District Court Judge in any conventional sense. For example, paragraph 2 is in the following terms:
2. Vexatious, frivolous &/or abuse of process???
A lawful person wouldn't think or honestly believe that in the Australian history of criminal law, a layman such as the appellant [also the victim] would allege or make an allegation of blackmail amongst other allegations of unlawful criminal conduct against a presiding Magistrate without reasonably believing [& having more than "beyond reasonable doubt" evidence to support such an allegation] that such conduct did in fact take place, keeping in mind the appellant who by all standards when speaking of law, lawyers, barristers etc. is nowhere near any such capacity to lay such a claim however upon reading the CLCA 1935 & other material such as case law, interstate criminal codes [Acts] & the events that transpired within the court room at Port Augusta c. May 2020 - May 2021 [more specifically the events leading to & in the month of July 2020], the appellant is no way being vexatious, frivolous, or attempting to abuse any serious court processes or waste a SC judiciary members time who would have much more pressing matters to attend to. The appellant is not of such a denatured person to do such a thing even to his worst enemy [go find one as they don’t exist] nor would he purposely waste the courts time with any such baseless accusation(s). The appellant & victim spent months composing the "Form 2 Information & Charges", "Facts of Charges" & "The summary of offenses", not out of vexacity, frivolity nor with a view to abuse any processes.
• R v Lambert [2009] EWCA Crim 2860 - The person who makes the demand doesn't necessarily need to carry the menaces to the demand
• R v Garwood [1987] 1 All ER 1032 - The victim [the appellant] at the time was in a particular vulnerable position or set of circumstances "High Risk Paralysis"
It is not necessary to address the appeal documents any further.
It is clear that the Notice and grounds do not comply with the Rules of Court and they are, in addition, frivolous, vexatious and an abuse of the process of the Court within the meaning of r 30.3(1) of the Joint Criminal Rules 2022 (SA).
No attempt has been made by the appellant to address the Magistrate’s immunity from suit. It is important that baseless prosecutions and appeals such as these be addressed firmly and with expedition. As was explained in Yeldham v Rajski:[13]
The basis of the immunity of judges from civil proceedings in respect of their judicial acts, which has been part of the law for centuries, is based on high policy which has been put in a number of ways but in essence is that the immunity is essential to the independence of judges. It is a policy designed to protect the citizen and not merely to give protection to judges. As it seems to me this policy is as equally applicable to criminal proceedings for the acts of judges, in their exercise of their judicial functions, as it is in respect of civil proceedings. … If the law were that any disgruntled litigant could charge a judge with contempt for being wrong and mala fides in his conclusion, or in arriving at the conclusion without any or any sufficient evidentiary basis, independence required of judges would be greatly eroded.
[13] Yeldham v Rajski (1989) 18 NSWLR 48, 69 (Hope AJA, with whom Priestley JA agreed).
The immunity confers protection from criminal responsibility for acts or omissions by a judicial officer in the exercise of that officer’s judicial function, even where the officer acts in excess of authority, or was otherwise bound to do the act omitted. That does not mean that judges, still less magistrates, are unaccountable in the performance of their judicial duties:[14]
This does not mean that judges are unaccountable. Judges are required, subject to closely confined exceptions, to work in public, and to give reasons for their decisions. Their decisions routinely are subject to appellate review, which also is conducted openly. The ultimate sanction for judicial misconduct is removal from office upon an address of Parliament. However, the public interest in maintaining the independence of the judiciary requires security, not only against the possibility of interference and influence by governments, but also against retaliation by persons or interests disappointed or displeased by judicial decisions.
[14] Fingleton v The Queen (2005) 227 CLR 166, [39] (Gleeson CJ). In South Australia, the accountability of judicial officers is underscored by the terms and scope of the Judicial Conduct Commissioner Act 2015 (SA). See generally A Judicial Officer v The Judicial Conduct Commissioner and the Judicial Conduct Panel [2022] SASCA 42 where the operation of the Act was considered.
In these circumstances, it is appropriate to strike-out the Notice of Appeal and the documents associated with it.
The interlocutory application
The appellant has filed an interlocutory application dated 22 January 2023 seeking various orders.[15] Most of the orders sought are the same as those sought in the Notice of Appeal. The two new orders are:
1.Fast track the application for the SC NOA to be heard on urgent grounds “Contempt in the face / in the place of the court” JCR 2022 Div 2, r. 17.1(2) [Urgent], Div 3, r. 39.1, Div 3, r. 50.1(1)(2)(b)
…
8.Leave to file further offences, to be done within 60 – 90 days [most being major indictable offences along with some being minor indictable offences]
[15] The Application was only accepted for filing by the registry on 31 January 2023. The Court of Appeal has power to make interlocutory orders under r 192.4(1) (a single judge of the Court of Appeal) and r 192.4(2) (a coram constituted in accordance with r 192.3) of the Joint Criminal Rules 2022 (SA).
The essence of the application is that this Court should find that the Magistrate is guilty of bribery and contempt and make the orders sought. That application is both unconventional and inappropriate. The allegations are incapable in law of amounting to bribery or contempt.
The affidavit of the appellant sworn on 22 January 2023 in support does nothing to assist this application. The affidavit makes unsupported allegations of criminal conduct by the Magistrate and others.

The application and affidavit are frivolous, vexatious and an abuse of the process of the Court. Again, no attempt has been made to grapple with Magistrate’s immunity under s 44 of the Magistrates Court Act 1991 (SA).
In these circumstances, it is appropriate to dismiss the application and strike-out the affidavit.
The suppression order
The respondent has applied for a suppression order. Though an interim order was not opposed by the appellant earlier this week, a suppression order is opposed today.
The application is made pursuant to s 69A of the Evidence Act 1929 (SA). When considering whether to make an order, the Court must have regard to s 69A(2) of the Evidence Act 1929 (SA).
It is necessary to commence with the propositions that the Magistrate has been made the subject of criminal allegations which are without foundation and which were properly described by the Judge as scandalous and intended to harass. Were the Magistrate’s name to be published, it would expose the performance of the Magistrate’s functions to the risk that they may be undermined by the false perception that it is inappropriate that the Magistrate sit and exercise the powers of a magistrate.
In these circumstances, a suppression order should be made to prevent prejudice to the proper administration of justice.
The Court recognises that there is a primary objective of safeguarding the public interest in the administration of open justice, and the right of the news media to publish.
Nonetheless, the circumstances outlined are sufficiently special that they give rise to a sufficiently serious threat to the proper administration of justice that they justify making a suppression order in this particular case. [16]
[16] The categories of case in which a supplementary order may be made are not closed, Hogan v Hinch (2011) 243 CLR 506, [21] (French CJ).
Conclusions
Given the vexatious nature of the prosecution, and the appellant’s apparent determination to pursue it (in whatever guise), it is appropriate to make further orders in the exercise of this Court’s inherent jurisdiction. These will regulate the way in which the appellant can pursue any further prosecution against the Magistrate and ensure that the respondent, the respondent’s legal advisors and the Court are not put to unnecessary time, trouble and cost.
Whilst there is presently no application for an order akin to a vexatious litigant declaration under s 39 of the Supreme Court Act 1935 (SA), restraining the further prosecution of the Magistrate is appropriate where the only conduct relied on appears to be met by the Magistrate’s immunity.
The Court will order that, subject to obtaining leave from a Judge of the Supreme Court, the appellant is restrained from commencing new criminal proceedings in the courts or tribunals of this State where they comprise an attempt to re-litigate, or are otherwise concerned with, whether directly or indirectly, the criminal prosecution of the respondent for her acts or omissions in the exercise of her judicial functions in connection with the prosecution commenced in the Magistrates Court on 15 August 2019.[17]
[17] Georganas v Barkla [2021] SASC 47, [21]-[24] (Livesey J).
Accordingly, the orders of the Court are:
1.The name of the respondent is suppressed from publication pursuant to s 69A(1)(a) of the Evidence Act 1929 (SA).
2.The Notice of Appeal and Amended Notice of Appeal and associated documents are struck-out.
3.There will be an order by way of injunction prohibiting the appellant from instituting new criminal proceedings in a South Australian court or tribunal against the respondent Magistrate where they concern, whether directly or indirectly, acts or omissions undertaken by the respondent Magistrate in the exercise of her judicial functions in connection with the prosecution commenced in the Magistrates Court on 15 August 2019.
4.The interlocutory application dated 22 January 2023 is dismissed and the supporting affidavit dated 22 January 2023 is struck-out.
5.There will be an order for costs in favour of the respondent fixed in the amount of $1,000.
6.So as to ensure that the resources of this Court are not wasted, it is also directed that, should the appellant wish to commence criminal proceedings against the Magistrate in a South Australian court or tribunal in respect of acts or omissions of the Magistrate undertaken in the exercise of her judicial functions in connection with the prosecution commenced in the Magistrates Court on 15 August 2019, the appellant must first correspond with the Registrar of this Court who will determine whether and how to deal with what the appellant proposes.
ANNEXURE A
On 22 June 2020, the appellant appealed against interlocutory decisions of a Magistrate made during the course of proceedings for the alleged speeding offence. On 4 August 2020, Lovell J dismissed that appeal. During the course of the appeal proceedings, the appellant tried to add a ground of appeal relating to the dismissal by a Magistrate of the application for an intervention order. Lovell J disallowed that amendment.
In July 2020, the appellant applied for an intervention order against the police officer who detected the alleged speeding offences. A Magistrate dismissed the application on 16 July 2020.
In August 2020, the appellant filed an appeal against a Magistrate’s decision dismissing the application for the Intervention order. Blue J dismissed the appeal against that decision on 17 September 2020.
On 15 September 2020, the appellant commenced civil proceedings against the South Australia Police / the State in the Supreme Court, claiming malicious prosecution as a result of the prosecution concerning the alleged speeding offence. Subsequently on 14 April 2021, Master Dart made orders summarily dismissing the proceedings on the basis there was no reasonable basis disclosed for the claim of malicious prosecution, there was no causal link between the Appellant's alleged injury and any conduct of the South Australia Police, and on the bases that the appellant’s claim was impossible to understand or follow, and the personal injury claim was vexatious.[18]
[18] Kiparoglou v The State of South Australia [2021] SASC 78, [4] (Parker J).
Subsequently, Parker J dismissed an application for an extension of time to appeal that decision.[19]
[19] Kiparoglou v The State of South Australia [2021] SASC 78, [1] (Parker J).
On 23 October 2020, the appellant applied for a second Intervention Order against Officer Fantinel. The application was dismissed by a Magistrate. The appellant appealed against that decision and the appeal was dismissed by Chief Justice Kourakis on 7 July 2021.[20]
[20] Kiparoglou v Fantinel [2021] SASC 90 (Kourakis CJ).
On 20 August 2021, the Court of Appeal dismissed an application for leave to appeal the decision of the Chief Justice.[21]
[21] Kiparoglou v Fantinel [2021] SASCA 84 (Kelly P and Livesey JA).
On 12 January 2021, Parker J dismissed an application by the appellant to vary his conditions of bail.[22]
[22] Kiparoglou v The Queen [2021] SASC 2, [18] (Parker J).
On 30 June 2021, Slattery DCJ struck out proceedings commenced by the appellant in negligence against a general practitioner for access to his medical records on the basis that the proceedings were frivolous, vexatious and an abuse of process.[23]
[23] Kiparoglou v Dr Azghandi Pty Ltd [2021] SADC 76 (Slattery DCJ).
A subsequent application for leave to appeal that decision was dismissed.[24]
[24] Kiparoglou v Dr Azghandi Pty Ltd [2021] SASCA 149 (Livesey P and Doyle JA).
On 3 August 2021, Parker J dismissed an appeal by the appellant in which he appealed a conviction, following entry of a guilty plea, for using a mobile phone whilst driving a motor vehicle. Notwithstanding that the charge concerned a different traffic infringement, the appellant’s submissions in those proceedings concerned the alleged speeding offence.[25] Parker J described the appeal as “entirely without merit”.[26]
[25] Kiparoglou v Police (2021) 97 MVR 161, [26]-[29] (Parker J).
[26] Kiparoglou v Police (2021) 97 MVR 161, [45] (Parker J).