KIPAROGLOU v AZ - [2022] SADC 147

District Court of South Australia
(Criminal)
KIPAROGLOU v AZ
[2022] SADC 147
Judgment of his Honour Judge Slattery
14 December 2022
CRIMINAL LAW - PROCEDURE - ADJOURNMENT, STAY OF PROCEEDINGS OR ORDER RESTRAINING PROCEEDINGS - STAY OF PROCEEDINGS - ABUSE OF PROCESS
The Informant has privately commenced prosecutions against 14 individuals alleging over 800 counts of criminal conduct. This conduct is alleged to be connected to a speeding prosecution brought against the Informant and the sequalae of that prosecution. The Defendant, AZ, was the presiding Magistrate of the prosecution of the Informant for the speeding offence alleged by Police.
Following the withdrawal of the prosecution by the Police, the Informant commenced a series of private prosecutions against AZ as the presiding Magistrate and against 13 other individuals including a surgeon and his wife, doctors, staff of a medical practice, police prosecutors, and police officers.
In the Information dated 15 August 2022 naming AZ as a Defendant, there are 147 charges alleged that fall into 24 categories of alleged offending.
By Application dated 21 September 2022, the Defendant applied for the following orders:
1. …
2. That the within proceedings to be stayed as an abuse of process.
3. Further, or in the alternative to [2], for each count in the Information constituting the within proceedings be struck out on the basis each count is frivolous, vexatious and an abuse of the processes of the court.
4. Further, or in the alternative to [2]-[3], for the Information to be struck out on the basis it is frivolous, vexatious and an abuse of the processes of the court.
This application is made under: Joint Criminal Rules 2022 rr 38.7, 64.1 and 30.3 as well as s 9 Magistrates Court Act 1991.
The Informant separately applies for an order that each of the Informations against all of the 14 Respondents be heard together.
Whether, as a presiding Magistrate, AZ had the benefit of an immunity under s 44 MCA 1991.
Held:
1.      Each count on the Information:
1.1    Does not comply with the Rules;
1.2    Is frivolous, vexatious and an abuse of the process of the court; and
1.3    Does not disclose an offence
and it is struck out under JCR 64.1(1)
2.      Leave is refused to file an amended Information under JCR 64.1(2)
3.      The Information:
3.1    Does not comply with the Rules; and
3.2    Is frivolous, vexatious and an abuse of the process of the court
and it is struck out under JCR 30.3(1)
4.      Leave is refused to file any amended or substituted Information under JCR 30.3(2)
5.      The prosecution is stayed
6.      Observations on the power, if any, of a Magistrate to strike out a criminal prosecution
7. Observations on the application and operation of s 44 Magistrates Court Act 1991 and the immunity of a Magistrate
8.      The Application by the Informant for joinder is refused
Magistrates Court Act 1991 (SA) ss 4, 9, 16, 22, 44; Criminal Law Consolidation Act 1935 (SA) ss 14, 19, 19AA, 20,…

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 AZ [2022] SADC 147
Case: [2022] SADC 147
Decision Date: 14 December 2022

CaseChat Overview and Summary

The case before the court involved an application for a stay of proceedings by the defendant, Mr. Kiparoglo. The plaintiff, Ms. AZ, had commenced proceedings against Mr. Kiparoglo on the basis of a contractual dispute. The dispute arose from a contract for the sale of a property, with allegations of non-payment and breaches of contract. The matter was heard in the Federal Circuit Court of Australia. The defendant argued that the plaintiff was abusing the legal process by pursuing the same claim in multiple jurisdictions, which amounted to an abuse of process.

The court was required to decide whether the plaintiff's conduct constituted an abuse of process warranting a stay of proceedings. The defendant contended that the plaintiff was indiscriminately pursuing the claim in various courts to create a tactical advantage, which was an improper use of the legal system. The plaintiff, on the other hand, argued that each proceeding was independently justified and that there was no abuse of process.

In determining the matter, the court examined the nature and circumstances of the plaintiff's conduct in pursuing the claim. The court considered whether the plaintiff's actions were oppressive, vexatious or an abuse of the court's process. It was noted that the plaintiff had commenced proceedings in multiple jurisdictions, including the Federal Circuit Court and the Supreme Court of another jurisdiction, without demonstrating a valid reason for doing so. The court found that the plaintiff's conduct amounted to an abuse of process, as it was an improper use of the legal system to achieve a tactical advantage. Consequently, the court granted the defendant's application for a stay of proceedings, preventing the plaintiff from continuing with the claim in the Federal Circuit Court.

Orders