(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 The prosecution was later withdrawn after a number of interlocutory hearings and adjournments to the trial date.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.
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…
Grounds of appeal
[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.
[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.
[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.
Consideration
[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.
[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.
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Details
AGLC
Kiparoglou v A Magistrate [2023] SASCA 16
Case
[2023] SASCA 16
Decision Date
CaseChat Overview and Summary
The appellant, Kiparoglou, commenced a private prosecution against a Magistrate. This prosecution arose from the Magistrate's conduct during interlocutory proceedings in a speeding charge against the appellant. The appellant alleged the Magistrate's actions, including directing the Registrar to contact his general practitioner for medical evidence to support an adjournment application, were unlawful. The Crown, representing the Magistrate, applied to strike out the prosecution.
The central legal issues before the Court were whether the private prosecution constituted an abuse of process, whether the Magistrate was immune from such proceedings, and what orders were necessary to prevent further vexatious litigation. The Court was required to consider the application of rule 64.1 of the Joint Criminal Rules 2022 (SA), which permits the striking out of counts in an information if they do not comply with the rules, are frivolous, vexatious, an abuse of process, or do not disclose an offence.
The Court reasoned that the prosecution was vexatious and an abuse of process, particularly given the Magistrate's judicial immunity. The Court noted the appellant's history of pursuing numerous unsuccessful legal actions related to the original speeding charge and subsequent matters. Applying its inherent jurisdiction, the Court determined that further proceedings against the Magistrate concerning her judicial functions in the original prosecution should be restrained. The Court also ordered the suppression of the respondent's name and struck out the appellant's notice of appeal and associated documents.
Consequently, the Court ordered that the appellant is restrained from commencing new criminal proceedings against the Magistrate in South Australian courts or tribunals concerning her judicial acts or omissions in the original prosecution, unless he first obtains leave from a Judge of the Supreme Court. The Court also dismissed an interlocutory application by the appellant and awarded costs to the respondent. Further, the appellant was directed to correspond with the Registrar before commencing any future criminal proceedings against the Magistrate in respect of her judicial functions.
Orders
Orders of the court
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Background
Background to the litigation
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.
Evidence
Evidence Before The Court
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Decision
Reasons for decision
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 AOn 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).