Kuksal v Mioch

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE
COMMON LAW DIVISION
JUDICIAL REVIEW AND APPEALS LIST

S CI 2023 00183

SHIVESH KUKSAL	Plaintiff
v
JAMES MIOCH	Defendants
(and others according to the Schedule attached)

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JUDGE:	Ginnane J
WHERE HELD:	Melbourne
DATE OF HEARING:	30-31 May, 9-10 November 2023
DATE OF JUDGMENT:	20 December 2023
CASE MAY BE CITED AS:	Kuksal v Mioch
MEDIUM NEUTRAL CITATION:	[2023] VSC 624

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JUDICIAL REVIEW AND DECLARATIONS – Application for declaratory orders –Magistrates’ Court hearing criminal charges of resisting authorised officers – Supreme Court proceeding challenging Magistrates’ Court’s jurisdiction – Whether charges contain a jurisdictional fact – Declarations sought as to decisions and rulings in Magistrates’ Court hearing – Whether charge sheet a nullity – Plaintiff seeking discovery and production of documents – Application dismissed – Summons by defendants to stay the proceeding because of fragmentation of the hearing of the criminal charges – Temporary stay granted – Court Security Act 1980 ss 3, 9.

PRACTICE AND PROCEDURE – Reopening application – Whether new evidence - Whether misapprehension of fact or law – Applications to rely on newly discovered evidence – Applications dismissed.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	In person
For the 1^st-9^th, 11^th and 14^th Defendants	Mr A Imrie Ms M Cananazi (9-10 November 2023)	Victorian Government Solicitor’s Office
For the 12^th and 13^thDefendants	Mr L McAuliffe	Corrs Chambers Westgarth
For the Proposed 25^th and 26^th Defendants	Ms M Cananzi	Victorian Government Solicitor’s Office

TABLE OF CONTENTS

Introduction........................................................................................................................................ 2

Summary of decision......................................................................................................................... 2

Background......................................................................................................................................... 2

The plaintiff’s originating motion.................................................................................................. 4

The plaintiff’s proposed orders of 26 April 2023......................................................................... 7

The prosecution defendants’ summons for a temporary stay of this proceeding............... 10

The Court Security Act 1980........................................................................................................... 10

Prosecution defendants’ submissions in support of their summons seeking a stay of this proceeding................................................................................................................................... 13

Analysis of the issues about the Court Security Act – proposed order 3.1........................ 14

The prosecution defendants’ stay summons.............................................................................. 19

The prosecution defendant’s submissions concerning their stay summons...................... 22
The plaintiff’s response to the prosecution defendants’ stay summons............................. 24
Analysis of the prosecution defendants’ stay summons....................................................... 27
Proposed orders 7 and 8 sought against the Prosecution and the VLSB............................ 33
The submissions in response of the prosecution defendants and the VLSB...................... 34
Analysis of plaintiff’s application for orders against the prosecution for discovery and that the VLSB release documents to him...................................................................................... 36

The plaintiff’s proposed amended originating motion of 10 May 2023................................ 37

Twenty-fifth and Twenty-Sixth Defendants – Court Services Victoria and VCAT’s Chief Executive Officer.................................................................................................................................. 38

Plaintiff’s applications after judgment was reserved............................................................... 39

Plaintiff’s reopening application............................................................................................... 39
Submissions opposing the reopening application................................................................. 45
Decision on the plaintiff’s reopening application.................................................................. 45
Additional matters...................................................................................................................... 47
Applications relating to Recently Discovered Evidence...................................................... 47

Conclusion......................................................................................................................................... 47

HIS HONOUR:

Introduction

The plaintiff’s originating motion of 20 January 2023 seeks judicial review and declarations concerning the conduct of, and decisions made in, the hearing of criminal charges against him in the Magistrates’ Court and the conduct of persons and bodies associated with the prosecution.

This judgment concerns the following issues: the plaintiff’s application for determinations and declarations about the meaning and operation of provisions of the Court Security Act 1980 for alleged breach of which two of the charges against him have been brought; the plaintiff’s application for orders that the prosecution make discovery of documents and that the Victorian Legal Services Board release documents to him; and the prosecution defendants’[1] summons seeking the stay of this proceeding until the determination of the prosecution of the charges against the plaintiff and any appeal therefrom. The judgment also concerns the plaintiff’s applications to reopen the hearing and to rely on recently discovered evidence after judgment was reserved.
[1]The prosecution defendants were the 1st-9th, 11th and 14th defendants.

Summary of decision

For the reasons given below, I refuse to make the determinations and declarations that the plaintiff seeks about the operation of the Court Security Act and I refuse the plaintiff’s application for discovery and release of documents and other orders that he sought. I grant a temporary stay of this proceeding until the determination of the charges against the plaintiff and any appeal or judicial review thereof. I refuse the plaintiff’s applications to reopen the hearing that occurred on 30 and 31 May 2023 or to rely on recently discovered evidence.

Background

The criminal charges brought against the plaintiff follow an incident in which the informant alleges that the plaintiff resisted or refused to comply with a direction given by Protective Security Officers (‘PSOs’) at the Victorian Civil and Administrative Tribunal (‘VCAT’) building on King Street Melbourne on 19 March 2019. The plaintiff was arrested during the incident, but contends that the arrest was unlawful. The plaintiff had attended a hearing in which a company of which he was a director was a party.

The plaintiff was charged with four offences which together were given case number K12128195. Charge 1 was the plaintiff at Melbourne on 19 March 2019 did resist PSO Colin Benning and PSO Brendan Smith both emergency workers on duty knowing or being reckless as to whether they were emergency workers in breach of s 31(1)(b) of the Crimes Act 1958. Charge 2 was that the plaintiff at Melbourne on 19 March 2019 did resist PSO Brendan Smith and PSO Colin Benning emergency workers on duty in breach of s 51(2) of the Summary Offences Act 1966. Charge 3 was that the plaintiff at Melbourne on 19 March 2019 did refuse to comply with a direction given by an authorised officer in breach of s 3(2B) of the Court Security Act 1980. Charge 4 was that the plaintiff at Melbourne on 19 March 2019 did resist PSO Brendan Smith an emergency worker on duty knowing or being reckless as to whether he was an emergency workers, in breach of s 31(1)(b) of the Crimes Act 1958.

The two PSOs named on the charge sheet are the fourth and fifth defendants, being authorised officers under the Court Security Act, who were on duty at VCAT. The sixth to ninth defendants are police officers who attended the incident at the VCAT building. The third defendant is an employee solicitor of Victoria Police who initially had carriage of the Magistrates’ Court prosecution.[2]
[2]Affidavit of Stephen John Payne sworn 26 April 2023, [8]-[9].

On 31 March 2022, the first defendant, Senior Constable James Mioch, replaced First Constable, Broderick Wells, the seventh defendant, as the informant in the proceeding. The other defendants include solicitors and prosecutors, the second and third defendants; the sixth, eighth and ninth defendants being police officers; the tenth defendant a Magistrate who presided over one of the hearings held in respect of the charges; the eleventh defendant, the State of Victoria: the twelfth defendant, the VLSB (‘VLSB’); the thirteenth defendant, the VLSB’s Chief Executive Officer and the Victorian Legal Services Commissioner (‘Commissioner’); the fourteenth defendant, the Office of Public Prosecutions (‘OPP’); and the fifteenth defendant, a Judge of this Court.[3]
[3]Ibid [11]-[13].

On 25 October 2022, the prosecutions were transferred to the indictable stream in the Magistrates’ Court. In December 2022 carriage of the prosecutions was assumed by the OPP.

The proceeding was listed for a committal hearing on 14 March 2023, on which day, the OPP applied to withdraw the indictable charges, being the first and fourth charges. The Magistrates, despite the opposition of the plaintiff, granted leave for their withdrawal.

At the hearing in the Magistrates’ Court on 12 April 2023, the plaintiff submitted that the Court lacked jurisdiction. The Magistrate ordered the filing of written submissions about that issue and adjourned the proceeding until 2 May 2023, but no decision on jurisdiction was given on that day.

Charges 2 and 3 await hearing.

The plaintiff’s originating motion

The plaintiff’s originating motion includes claims for determinations and declarations about the conduct of, and decisions made in, the hearing of criminal charges against him in the Magistrates’ Court and the conduct of persons and bodies associated with the prosecution. The plaintiff sought declarations as to the operation of the Court Security Act and that his arrest was unlawful, that the Magistrates’ Court did not have jurisdiction to hear the charges and that particular decisions made by Magistrates in preliminary hearings were invalid.

I will next state in summary the terms of all the declarations that the plaintiff seeks.

First, that on 19 March 2019, PSOs subjected the plaintiff to unlawful arrest, false imprisonment, assault, battery, cruel and/or degrading behaviour and infliction of mental harm.

Second, that any attempted or ‘[e]ffected’ arrest of the plaintiff by PSOs Smith and Benning or Victoria Police officers was unlawful, malicious and part of a conspiracy to effect public mischief.

Third, that a Magistrate’s bail order of 25 October 2022 concerning the plaintiff was issued in jurisdictional error or error of law, was not attained following a fair hearing, was affected by fraud or equitable fraud perpetrated on the Court, was an exercise in Wednesbury unreasonableness,[4] was capable of raising a reasonable apprehension in a fair-minded observer that the Magistrate may have been prejudiced against the plaintiff, was a nullity or otherwise unlawful, was unjust and oppressive, and was contrary to the principle of the rule of law established in the Commonwealth Constitution.
[4]Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1948] 1 KB 223.

Fourth, that the Mioch proceeding, by which is meant the prosecution of the four criminal charges brought against the plaintiff, was commenced and maintained in the Magistrates’ Court as an abuse of process of that Court’s criminal law jurisdiction, in breach of the plaintiff’s statutory and general law rights, in breach of the defendants’ statutory and general law obligations and led to the oppression and public humiliation of the plaintiff.

Fifth, that the prosecutors involved in the prosecution were culpable of misconduct and breaches of their statutory duties. The substance of the 14 grounds relied on include bringing and maintaining a vexatious proceeding against the plaintiff as an abuse of the court’s criminal law jurisdiction and duplicating the indictable offence charge against him two weeks prior to the trial and approximately four years after the commencement of prosecution, despite knowing that he was self-represented and misleading the Magistrates’ Court about the service of the documents concerning the additional charge; failing to provide to the plaintiff all relevant evidential material and all the information and documents, especially the exculpatory evidence that ought to have been disclosed to him and misleading the Magistrates’ Court as to their failure to provide relevant evidence; opposing the plaintiff’s adjournment application to obtain legal representation; insisting on the continuation of the trial in relation to indictable offences summarily despite the plaintiff’s protests; seeking oppressive and onerous bail conditions against the plaintiff without proper basis and colluding with the VLSB and the Commissioner in impeding the plaintiff in securing bail on 25 October 2022; opposing the plaintiff’s choices of surety; and unreasonably pursuing the Magistrates’ Court prosecution to a committal mention despite it being maintained in jurisdictional error and at ‘great prejudice to the plaintiff’s constitutional and human rights’.

Sixth, that r 4.08 of the Supreme Court (General Civil Procedure) Rules 2015 (‘Rules’), which confirms the Court’s power to waive or defer certain procedural requirements to provide relief against potential injustice in urgent circumstances, contemplates a judicial determination of the issues involved.

Seventh, that the denial of the plaintiff’s legitimate expectation that the merits of his application in relation to the relief identified through r 4.08 would be assessed judicially, following a fair hearing, was contrary to the requirements of procedural fairness and/or natural justice.

Eighth,[5] that the ‘administrative’ decisions of a Judge of this Court in October 2022 to refuse the plaintiff’s application for injunctive relief in another proceeding, SECI 2022 04808, was capable of impeding the public’s access to judicial power and judicial determinations and was antithetical to the rule of law implied in Chapter III of the Commonwealth Constitution, repugnant to the principle of law that a court of equity could not refuse urgent injunctive relief to an applicant without first judicially evaluating the substance of their application in accordance with High Court decisions and in violation of the Court’s obligation to consider the impact of the decision on the plaintiff’s human rights pursuant to s 38 of the Charter of Human Rights and Responsibilities Act 2006 (‘Charter’).
[5]The eighth declaration sought in the originating motion is no longer pursued and the defendant concerned, the sixteenth defendant has been removed as a party. The numbers of the declarations sought by the plaintiff have been adjusted accordingly.

Ninth, that the Prothonotary’s policy of selectively scrutinising, and thereby delaying, originating motion applications filed by lay persons on the ground that they may constitute an abuse of the Court’s process, was unlawful.

Tenth, that r 27.06(1) under which the Prothonotary had so acted is invalid.

Eleventh, that the decision of Court Services Victoria made on 4 January 2023 to refuse the provision of documents sought by the plaintiff was in breach of the Freedom of Information Act 1982 (‘FOI Act’) and ‘in perpetuation of the injustice experienced by [him] through the malicious abuse of their statutory office’ by the VLSB and the Commissioner.

Twelfth, that the decision of the VLSB and the Commissioner made on 15 December 2022 to not investigate allegations made by Peter Ansell against agents of the VLSB (‘VLSB agents’) was unlawful, in contravention of the VLSB’s statutory objectives, offensive to the objectives behind the enforcement of the Legal Profession Uniform Law 2014 (‘Uniform Law’), was an abandonment of their statutory obligations and in furtherance of its conspiracy with the VLSB agents to effect public mischief and cause malicious harm to the plaintiff’s interests.

The plaintiff seeks the dismissal of the Mioch proceeding and that the Court instruct the Magistrates’ Court to promptly provide him with its communications with the VLSB and the Commissioner’s office, with all Victoria Police officers, the OPP the Victorian Government Solicitor’s Office (‘VGSO’) and any other parties in relation to the Mioch proceeding.

The plaintiff’s proposed orders of 26 April 2023

At a directions hearing on 26 April 2023, the plaintiff produced a document titled ‘The plaintiff’s proposed orders’, which was based in part on his summons of 3 February 2023 sought in paragraph 3 that the Court:

3. Affirm that:
3.1Non-compliance with sub-section 2B of section 3 of the Court Security Act 1980 (Vic), in the absence of an appropriate direction given in accordance with the requirements of sub-section 11 of section 3 of the Court Security Act 1980 (Vic), cannot give rise to:
3.1.1the commission of an offence by the non-compliant person, under sub-section 2 of section 51 of the Summary Offences Act 1966 (Vic); or

3.1.2 A cause for the arrest of the non-compliant person; and
3.2Any attempted or effected arrest of the Plaintiff by PSOs Smith and/or Benning on 14 and/or 19 March 2019 was unlawful.

Paragraph 4 of the proposed orders in summary sought:

Determinations and declarations that persons involved in the prosecution in the Magistrates’ Court proceedings had been culpable of prosecutorial misconduct and/or breach of their statutory and general obligations. This conduct included bringing and maintaining the proceeding and duplicating the indictable offence two weeks prior to the trial and four years after the commencement of the Mioch proceeding, failing to provide to the plaintiff all relevant evidentiary material including the entirety of the CCTV footage of the incident, misleading a Magistrate about Victoria Police’s failure to provide the plaintiff with the complete CCTV footage of the incident and failing to provide him with all the information and documents that ought to have been provided under the prosecutorial duty of disclosure and opposing or refusing to co-operate with the plaintiff’s attempts to gain access to documents which should have been disclosed to him including pursuant to his subpoena applications, opposing the plaintiff’s application for an adjournment on 24 and 25 October 2022 and insisting on the trial continuing in relation to indictable offences being tried summarily despite the plaintiff’s protests, misleading the Magistrate about his conversations with Senior Constable Mioch about the service of documents concerning the additional charge and matters concerning another charge, seeking and maintaining onerous bail conditions and opposing the plaintiff’s sureties and acting in concert with the VLSB and Commissioner in that regard, subjecting the plaintiff to unnecessary embarrassment, breach of privacy, violation of dignity, physical discomfort and confinement on 25 October 2022, misleading the Magistrate on 9 February 2023 about various matters, pursuing the Mioch proceeding to a committal mention despite it being maintained in jurisdictional error, perpetrating equitable fraud on the Magistrates’ Court and the plaintiff on 7 March 2023 by implying that the prosecution had intended to file a non-disclosure of evidence application, perpetrating equitable fraud on the Magistrates’ Court on 14 March and 11-12 April 2023 in refuting or refusing to acknowledge the plaintiff’s allegations of prosecutorial misconduct in the Mioch proceeding and falsely asserting or maintaining that the defects in the charge sheet filed in the Mioch proceeding had been cured on 24-25 October 2022, improperly delaying the conclusion of the Mioch proceeding and asserting that the plaintiff had sought to ‘intimidate witnesses’ on 19 March 2019.

Paragraphs 5. 6 and 7 of the proposed orders sought:

5.[The] release [of] the plaintiff from compliance with sub-clause (2) of Order 1.12 of the Court Rules in relation to the declaratory relief sought by the plaintiff against Ms Stevenson, Mr Mioch, and the Court Services Victoria, pursuant to section 3 of the Administrative Law Act 1978 (Vic).
6. Issue and order nisi for a writ of prohibition in respect of the prosecution’s continued failure to comply with its disclosure obligations under statute and general law.[6]
[6]Paragraphs 5 and 6 were not addressed in any detail at the hearings on 30 and 31 May 2023.
7. Order that the Prosecution immediately discover to the plaintiff, all documents that fall into at least one of the following categories:
7.1 All documents [without redaction] covered by the prosecutorial duty of disclosure, either pursuant to statute or general law;
7.2 All documents concerning the State’s decision to bring charges against the plaintiff in the Mioch Proceeding;
7.3 All documents concerning the collection, handling and use of evidence in the Mioch Proceeding; and
7.4 All documents concerning the Prosecution’s or their agents’ communication with any party in relation to the proceeding contemplated or commenced by Victoria Police (or the State) against the plaintiff.

8. An order that the LSB+C ‘Promptly release to the Plaintiff, all the documents within their possession, including any notes as well as all documents pertaining to their communications with any party, in relation to the proceedings contemplated or pursued against the plaintiff by Victoria Police (or the State).
9. An order permitting the plaintiff to lodge a further amended originating motion and consequently sanction the joinder of the affected parties.
10. Appropriate directions in relation to the plaintiff’s summary dismissal application against the defendants in relation to all the grounds raised in the Further Amended Originating Motion which are awaiting determination.
11. Make an indemnity cost order against the defendants in favour of the plaintiff.

I directed that on 30 May 2023 I would hear submissions about whether the orders sought by the plaintiff in paragraphs 5 and 7 to 11 of the proposed orders should be made and whether I should hear and determine the issues stated in paragraph 3.1 of the plaintiff’s proposed orders and, if I so determined, hear those submissions on 30 May 2023. I did not include in that direction the orders sought in paragraph 4 because they were described as involving extensive facts issues and, therefore, the declarations sought in that paragraph could only be decided after all evidence was called. On the 30 and 31 May 2023, the submissions made were principally directed to paragraphs 3, 7 and 8 of the proposed orders.

The prosecution defendants’ summons for a temporary stay of this proceeding

The other matter to be determined in this judgment is the summons issued by the 1^st to 9^th, 11^th and 14^th defendants who are referred to as the ‘prosecution defendants’. Their summons seeks the following orders:

(a) in the inherent jurisdiction of the Court, this proceeding be stayed until the Magistrates’ Court proceeding K12128195 is heard and finally determined;

(b) in the alternative, pursuant to r 23.01 of the Rules this proceeding be stayed until the Magistrates’ Court proceeding K12128195 is heard and finally determined on the ground that this proceeding generally, or the claims made in it, are an abuse of the process of the Court.

The Court Security Act 1980

I will next deal with proposed order 3.1, about which the parties made submissions and which as I have set out, requests the Court to affirm that:

3.1 Non-compliance with subsection 2B of section 3 of the Court Security Act 1980 (Vic), in the absence of an appropriate direction given in accordance with the requirements of subsection 11 of section 3 of the Court Security Act 1980 (Vic), cannot give rise to:
3.1.1. The commission of an offence by the non-compliant person, under subsection 2 of section 51 of the Summary Offences Act 1966 (Vic); or
3.1.2. A cause for the arrest of the non-compliant person; and

3.2 Any attempted or effected arrest of the Plaintiff by PSOs Smith and/or Benning, on 14 and/or 19 March 2019 was unlawful.

The terms of the relevant parts of s 3 of the Court Security Act are:

(2A) Subject to any limitations or restrictions provided by the rules, an authorized officer—
(a) may give to a person who wishes to enter court premises, or is on the court premises, a reasonable direction to do or not do a thing, for the purpose of maintaining or restoring the security, good order or management of the court premises; and
(b) may escort a person to or from court premises if that person has consented to being escorted by the authorized officer; and
(c) may, in the course of escorting a person to or from court premises, give a reasonable direction to another person to do or not do a thing, for the purpose of maintaining the safety of the person or the authorized officer; and
(d) may, if the authorized officer reasonably suspects that a recording, transmission or publication made or being made of a proceeding is not permitted by or under this Act or any other law, direct a person to do one or more than one of the following—
(i) stop making the recording, transmission or publication;
(ii) permit an authorized officer to view the recording, transmission or publication on a device;
(iii) delete the recording.

(2B) Subject to subsection (2C), a person must not refuse to comply with a direction under subsection (2A).
Penalty: 10 penalty units.
…
(9) An authorized officer may refuse a person entry to the court premises or remove a person from the court premises if the authorized person believes on reasonable grounds that the person is likely to affect adversely the security, good order or management of the court premises.
…
(11) An authorized officer who gives a direction to a person or demands or requires a person to do a thing under this section must advise the person before or immediately after giving the direction or making the demand or requirement that the person may commit an offence by refusing to comply with the direction, demand or requirement.

The plaintiff submitted that the following inferences could be drawn from the text of s 3 of the Court Security Act about its operation:
(a) a refusal to comply with a direction given pursuant to s 3(2A) of the Act cannot constitute a criminal offence or justify arrest.[7]
(b) any culpability in respect of a civil offence founded on a refusal to comply with a direction given pursuant to s 3(2A), ought to be contingent on the giving of the warning prescribed in s 3(11) of the Act, in accordance with the requirements stipulated therein.[8]
(c) there is no power of arrest invested in Police Officers or PSOs in Victoria, other than that arising under ss 458 and 459 of the Crimes Act 1958.[9]
[7]Transcript of Proceedings, Kuksal v Mioch, (Supreme Court of Victoria, S ECI 2023 00183, Ginnane J, 30-31 May 2023) 119 (‘T’).
[8]T 29-30.
[9]T 14.
The plaintiff argued that he could only have committed an offence under s 3 of the Court Security Act by refusing to comply with a direction given by an authorised officer after he had been first advised that failure to comply may be an offence: see s 3(11). He said that he had not been so advised.

The plaintiff argued that the Magistrates’ Court lacked jurisdiction to hear and determine the criminal charges because the charge sheet was invalid and a nullity.[10] This was because it did not contain an allegation that he had failed to comply with an authorised officer’s direction after he was advised that it may be an offence if he did not do so. He argued that the proof of such advice was a jurisdictional fact which the prosecution had not established. Therefore, the Court lacked jurisdiction to hear the charges and the bringing of the charges against him was an abuse of process. He said that he had advanced this argument to Magistrates at various hearings, but they had rejected or not accepted it, stating that his argument raised issues of fact which must be determined during the hearing.
[10]The plaintiff relied on Director of Public Prosecutions v Edwards (2012) 44 VR 114, [40].

The plaintiff also advanced arguments about the elements of the resisting arrest offence. He argued that the Court Security Act conferred no power of arrest, and that such power was only conferred by ss 458 and 459 of the Crimes Act 1958. The offence of resisting arrest could only be proved if the necessary mens rea was established and there was clear proof that he had been placed under arrest. The prosecution had not proved those matters. But, in my opinion, as the plaintiff had not been charged with an offence of resisting arrest, these issues did not arise.

Prosecution defendants’ submissions in support of their summons seeking a stay of this proceeding

The prosecution defendants who are the informant, police officers, PSOs, the State of Victoria and the OPP, contended that the Magistrates’ Court‘s jurisdiction was enlivened by the filing of a charge sheet as ss 5 and 6 of the Criminal Procedure Act 2009 provided. The Magistrate who heard the prosecution could deal with any application for the amendment of the charge sheet if he or she was persuaded that there were deficiencies in it.

The prosecution defendants argued that the Magistrate had the task of deciding whether there was sufficient evidence to sustain the charges. The plaintiff could make a no case submission if he considered that there was not. However, the plaintiff’s arguments were hypothetical until all the evidence was presented and the Magistrate had made findings of fact. Questions about whether the prosecution could prove the charges, or how it might put its case, could not be addressed as preliminary issues. The determination of the question of whether the plaintiff received the advice required by s 3(11) of the Court Security Act was a question of fact to be decided on the evidence led at the hearing of the charges. That question did not go to the Magistrates’ Court’s jurisdiction to commence to hear the charges. In any event, s 3(11) applied to charge 3 under the Court Security Act, but not to charge 2 under the Summary Offences Act, which could proceed without any such question being relevant.

The prosecution defendants argued that the charges did not contain any jurisdictional fact, which was a pre-condition to the proof of the charge.[11] There was no requirement that the charge sheet for the charge of breaching s 3(2B) allege that the plaintiff had received the advice required by s 3(11). However, even if the charges did contain a jurisdictional fact, the prosecution did not have to establish its existence at the commencement of the proceeding.[12] Nor did a defect in the wording of a charge render the charge sheet a nullity.
[11]Gedeon v Commissioner of the New South Wales Crime Commission (2008) 236 CLR 120, [43].
[12]Corporation of the City of Enfield v Development Assessment Commission (2000) 199 CLR 135 (‘Enfield’).

The plaintiff’s abuse of process submission should be made to the Magistrate hearing the charges. This Court did not know what evidence would be admitted in the Magistrates’ Court that may be relevant to any such submission. If necessary, the Magistrates’ Court could adopt measures to deal with any potential abuse of process, such as excluding evidence or ordering further discovery. Declarations cannot be made to resolve a dispute where there are contested matters of fact.

The plaintiff had not identified any special circumstances that justified the Court’s intervention in the Magistrates’ Court proceedings. If his arguments are not accepted by the Magistrates’ Court, he has the ordinary avenues of appeal available.

Analysis of the issues about the Court Security Act – proposed order 3.1

With the exception of matters I discuss at the end of this section of the judgment, I do not consider that the Court should express an opinion on the questions raised by proposed order 3.1. The application of ss 3(2A), 3(2B) and s 3(11) of the Court Security Act depends on the facts to be found by the Magistrate hearing the charges. Evidence is yet to be led and facts found and this Court should not supplant the Magistrates’ Court duty of performing that task. Much may depend on that Court’s findings about what the PSOs said to the plaintiff, at what point in the incident the prosecution alleges any ‘advice’ was given to him that may satisfy s 3 (11) and the context in which that occurred. In the absence of agreed facts or facts found by the trial court, in this case the Magistrates’ Court, this Court should not give an advisory opinion about the meaning and operation of ss 3(2)(A), 3(2B) and 3(11). Nor is it appropriate for this Court to hear evidence about the facts, still less make findings about them, when that is the province of the Magistrates’ Court before whom the charges are pending.

The Court’s power to grant declarations is not unlimited and involves the exercise of a discretion. As the High Court stated in Ainsworth v Criminal Justice Commission:[13]

It is now accepted that superior courts have inherent power to grant declaratory relief. It is a discretionary power which “(i)t is neither possible nor desirable to fetter ... by laying down rules as to the manner of its exercise.” Forster v. Jododex Aust. Pty. Ltd. per Gibbs J. However, it is confined by the considerations which mark out the boundaries of judicial power. Hence, declaratory relief must be directed to the determination of legal controversies and not to answering abstract or hypothetical questions. See In re Judiciary and Navigation Acts. The person seeking relief must have “a real interest” Forster, per Gibbs J.; Russian Commercial and Industrial Bank v. British Bank for Foreign Trade, Ltd. per Lord Dunedin and relief will not be granted if the question “is purely hypothetical”, if relief is “claimed in relation to circumstances that (have) not occurred and might never happen” University of New South Wales v. Moorhouse per Gibbs J. or if “the Court's declaration will produce no foreseeable consequences for the parties”. Gardner v. Dairy Industry Authority (N.S.W.) per Mason J., see also per Aickin J. respectively.

[13](1992) 175 CLR 564, 581 (citations omitted).

However, courts generally grant or make declarations only after the relevant facts have been found or proved. The High Court explained this requirement in lengthy passages in Bass v Permanent Trustee Co Ltd,[14] some of which I will now set out:
[14](1999) 198 CLR 334 [45], [47]-[49], [51]-[53], [56] (Gleeson CJ, Gaudron, McHugh, Gummow, Hayne and Callinan JJ) (citations omitted).

The purpose of a judicial determination has been described in varying ways. But central to those descriptions is the notion that such a determination includes a conclusive or final decision based on a concrete and established or agreed situation which aims to quell a controversy. ..
…
Because the object of the judicial process is the final determination of the rights of the parties to an action, courts have traditionally refused to provide answers to hypothetical questions or to give advisory opinions. The jurisdiction with respect to declaratory relief has developed with an awareness of that traditional attitude. In In re F (Mental Patient: Sterilisation), Lord Goff of Chieveley said that:
a declaration will not be granted where the question under consideration is not a real question, nor where the person seeking the declaration has no real interest in it, nor where the declaration is sought without proper argument, eg in default of defence or on admissions or by consent.

…
It is true that some have seen the use of the declaratory judgment as little more than the giving of an advisory opinion. However, one crucial difference between an advisory opinion and a declaratory judgment is the fact that an advisory opinion is not based on a concrete situation and does not amount to a binding decision raising a res judicata between parties. Thus, the authors of one recent text on declaratory judgments emphasise that, where the dispute is divorced from the facts, it is considered hypothetical and not suitable for judicial resolution by way of declaration or otherwise. They say:
If ... the dispute is not attached to specific facts, and the question is only whether the plaintiff is generally entitled to act in a certain way, the issue will still be considered theoretical. The main reason for this is that there may be no certainty that such a general declaration will settle the dispute finally. Subsequent to that declaration a person (the defendant himself or someone else) may be adversely affected by a particular act of the plaintiff. It may then be doubtful whether this act is covered by the declaration. In such a case the affected person will probably be entitled to raise the issue again on its special facts. Indeed, such a declaration will in effect be a mere advisory opinion.

As the answers given by the Full Court and the declaration it made were not based on facts, found or agreed, they were purely hypothetical. At best, the answers do no more than declare that the law dictates a particular result when certain facts in the material or pleadings are established. What those facts are is not stated, nor can they be identified with any precision. They may be all or some only of the facts. What facts are determinative of the legal issue involved in the question asked is left open. Such a result cannot assist the efficient administration of justice. It does not finally resolve the dispute or quell the controversy. Nor does it constitute a step that will in the course of the proceedings necessarily dictate the result of those proceedings. Since the relevant facts are not identified and the existence of some of them is apparently in dispute, the answers given by the Full Court may be of no use at all to the parties and may even mislead them as to their rights. Courts have traditionally declined to state - let alone answer - preliminary questions when the answers will neither determine the rights of the parties nor necessarily lead to the final determination of their rights. The efficient administration of the business of courts is incompatible with answering hypothetical questions which frequently require considerable time and cause considerable expense to the parties, expense which may eventually be seen to be unnecessarily incurred.
It cannot be doubted that in many cases the formulation of specific questions to be tried separately from and in advance of other issues will assist in the more efficient resolution of the matters in issue. However, that will be so only if the questions are capable of final answer and are capable of being answered in accordance with the judicial process.
…
Judicial power involves the application of the relevant law to facts as found in proceedings conducted in accordance with the judicial process. And that requires that the parties be given an opportunity to present their evidence and to challenge the evidence led against them. It is contrary to the judicial process and no part of judicial power to effect a determination of rights by applying the law to facts which are neither agreed nor determined by reference to the evidence in the case. However, that is what happened in this case.

I note that some of the declarations that the plaintiff seeks could only be made after findings that particular defendants had engaged in criminal conduct, including declarations that PSOs and Police Officers had subjected him to assault and battery. Courts are reluctant to make such declarations about alleged criminal conduct because the defendants who will be bound by them will not have been provided with the protections that would be provided to an accused person in a criminal trial.[15]
[15]Cf Mark Aronson et al, Judicial Review of Administrative Action and Government Liability (Thomson Reuters, 7^th ed, 2022) 1077.

While I do not consider it appropriate to make the orders or declarations sought by the plaintiff in paragraph 3.1 of the proposed orders, I do consider it appropriate to express my opinion on the plaintiff’s argument that the Magistrates’ Court lacked jurisdiction because it did not determine whether the charge sheet was defective because it did not allege a jurisdictional fact, being the matters contained in s 3(11) of the Court Security Act. That issue raises a purely legal question which can be considered without reference to particular facts.

I consider that the Magistrates’ Court was not required to determine, at the commencement of the hearing, whether the charge sheet was a nullity or defective because it did not allege a jurisdictional fact, which was said to be an element of the charge. If the Court considered it appropriate to do so, it could postpone answering that question until after the evidence had been led or tendered. Charge sheets can be amended during the course of a prosecution. The High Court’s judgment in Corporation of the City of Enfield v Development Assessment Commission[16] is an example of jurisdictional facts being determined after evidence had been led. In that case, the parties agreed upon certain facts and called evidence to assist in the determination of whether the development was a ‘special industry’. The High Court stated that:[17]

…[i]n whatever form the proceeding in the Supreme Court had been cast, it would have been necessary for Debelle J [the trial judge] to determine the “jurisdictional fact” issue upon the evidence before the Supreme Court.

[16](2000) 199 CLR 135.

[17]Ibid 151 [38] (Gleeson CJ, Gummow, Kirby and Hayne JJ).

The Magistrates’ Court, as with all courts, has jurisdiction to hear evidence and determine the facts, in order to decide whether it has jurisdiction. As Justice Leeming states in his work, Authority to Decide - The Law of Jurisdiction in Australia:[18]

In all cases, the grant of jurisdiction carries with it power to determine the existence of facts upon which it depends.

[18]Mark Leeming, Authority To Decide, The Law of Jurisdiction in Australia, (2^nd ed 2020) 39-40, citing amongst other authorities, DMW v CGW (1982) 151 CLR 491, 501,507 and R v Gray; Ex parte Marsh (1985) 157 CLR 351,374-5.

The Magistrates’ Court may decide that issues of jurisdiction should be determined at the commencement of the proceeding, or later, if it considers that that finding will depend on the evidence called. Thus, the Court may decide to await the calling of evidence to decide whether the prosecution has proved the existence of any jurisdictional fact upon which a charges depends. It can require the prosecution to state its case on jurisdiction, and to give a summary of the evidence that will be called on that issue, so as to assist the Court to decide whether a decision as to jurisdiction should be postponed until after the evidence is led. The fact that the accused person wishes to argue that proof of a charge requires proof of a jurisdictional fact does not give him or her the right to demand a ruling on that question at the commencement of the hearing. The Magistrates’ Court can also take into account that, if the evidence reveals a defect in the charge sheet, the prosecutor may seek to amend to it.

I therefore do not consider that the plaintiff has established that the Magistrates’ Court has erred in not ruling on his jurisdictional fact argument at the commencement of the hearing.

Nor do I consider that the High Court’s discussion in Enfield[19] supports the conclusion that s 3(11) of the Court Security Act contains a jurisdictional fact which must be stated in the charge sheet when alleging a breach of s 3(2B).[20] The charge sheet or the charges are not a nullity because they do not include such a statement. Rather, the proof of the matters contained in s 3(11) can be considered by the Court as part of deciding whether the charge has been proved at a point when all the evidence has been presented and submissions made.
[19](2000) 199 CLR 135.
[20]Section 3(11) is to be contrasted with the legislation considered in Strangio v Magistrates’ Courtof Victoria [2013] VSC 496, where the legislation imposed mandatory requirements that the Magistrate inform the accused of his rights to give and call evidence.

Paragraph 3.2 of the plaintiff’s proposed orders sought affirmation of the proposition that:

Any attempted or effected arrest of the Plaintiff by PSOs Smith and/or Benning, on 14 and 19 March 2019 was unlawful.

Paragraph 3.2 raises issues of fact and law that the Magistrates’ Court must determine.

The prosecution defendants’ stay summons

Before determining the prosecution defendants’ stay summons, it is appropriate to summarise the plaintiff’s grounds for seeking the declarations that I have mentioned and his application for orders that the Mioch proceeding be dismissed. I emphasise that I am not finally deciding these grounds, but am describe them to add to the context of the issues that may require determination at the final hearing of this proceeding.

These grounds fall into three categories. I have previously described Category A which concerns ‘the charges brought against the plaintiff’. Category B is titled ‘the defendants’ contumelious disregard for the plaintiff’s rights’ and category C is titled ‘the failure to afford the plaintiff a fair hearing’. Categories B and C can be considered together.

Those categories include allegations that ‘in manifesting conduct that underpins the Mioch proceeding, the defendants have failed to afford due consideration to the operation of provisions of the Human Rights Charter’.[21] The provisions were s 7, human rights, ‘what they are and how they may be limited’; s 10, protection from torture and cruel, inhuman or degrading treatment; s 12, freedom of movement; s 13 privacy and reputation; s 16 peaceful assembly and freedom of association; s 21, right to liberty and security of person; s 24, fair hearing and s 38, conduct of public authorities. The plaintiff also argued that his corresponding rights under the International Covenant on Civil and Political Rights were enforceable, as they appear in Sch 2 of the Australian Human Rights Commission Act 1986 (Cth).
[21]Plaintiff’s Originating Motion dated 20 January 2023 at [9].

As part of the grounds that fall within in categories B and C, the plaintiff challenged aspects of the hearing before the Magistrate on 24 and 25 October 2022, when the charges were apparently scheduled to be heard. The matters he raised included the following. The Magistrate did not have jurisdiction to permit the commencement and maintenance of the Mioch proceeding. The Magistrate commenced a trial in circumstances when the plaintiff had the choice of a jury trial and no committal had occurred and, therefore, the Magistrate was not permitted to conduct the trial summarily without the plaintiff’s consent. The Magistrate refused the plaintiff’s request for an adjournment, including to obtain counsel, and immediately commenced the hearing in breach of s 29 of the Criminal Procedure Act when the plaintiff had not yet been served with one of the charges. This refusal of an adjournment denied the plaintiff procedural fairness and constituted Wednesbury unreasonableness. The Magistrate’s statements and conduct during the hearings were capable of raising a reasonable apprehension in a fair-minded observer that the Magistrate may have been prejudiced against the plaintiff. The Court’s private communications with the VLSB concerning the plaintiff, undertaken to his exclusion, were sufficient to undermine the public confidence in the court’s administration of justice, or to satisfy the disqualification for bias test stated in Ebner v Official Trustee in Bankruptcy.[22] The prosecutor and informant’s collusion with the VLSB and Commissioner so as to prevent the plaintiff from securing bail was capable of bringing the administration of justice and the legal profession into disrepute. The Magistrate’s refusal to release the covert correspondence between the Court and the VLSB was antithetical to the proper conduct of the Court.
[22](2000) 205 CLR 337.

The plaintiff also claimed that he was denied an opportunity to cross-examine the prosecution witnesses, whose evidence the Magistrate, in deciding bail conditions, took as the ‘unrefuted evidence’ of the plaintiff’s culpability He also argued that the Magistrate determined issues underpinning the procedure adopted by the Court against him without affording him a fair opportunity to be heard. He alleged that the Magistrate himself called evidence from the informant. The plaintiff contended that, on the second hearing day, the Magistrate, realising that the trial could not be concluded as the plaintiff had not consented to the jurisdiction, decided that the trial would not proceed and that day became a filing day for the committal hearing.

The plaintiff also made allegations about the bail conditions imposed by the Magistrate and contended that his Honour lacked jurisdiction to make a bail order. He alleged that the Magistrate wrongly allowed the VLSB’s representatives to participate in the bail hearing and that they aided the police prosecutor in having the plaintiff’s sureties rejected. As a result, the plaintiff was taken into custody during the luncheon adjournment. He also contended that his human rights were not considered when the bail conditions were imposed and determinations were made in the hearings. He emphasised the importance of the rule of law and its inseparable relationship to judicial power. He submitted that the judiciary has the exclusive power to order that a citizen be detained when adjudging and punishing criminal guilt and that laws cannot authorise courts to exercise their power in a manner inconsistent with the nature of judicial power.

In response, the prosecution defendants submitted that the plaintiff’s complaints about the Magistrate’s actions had no substance. For example, the plaintiff’s complaint that he was not granted an adjournment on 24 October 2022 was irrelevant because he was ultimately granted an adjournment. They submitted that none of the plaintiff’s arguments went to the jurisdiction of the Magistrates’ Court to hear and decide the charges.

The prosecution defendant’s submissions concerning their stay summons

The prosecution defendants’ summons sought a temporary stay of proceedings under the inherent jurisdiction of the Court and under r 23.01 on the basis that proceeding was an abuse of process, until the Magistrates’ Court prosecution was completed and any appeal concluded. They argued that the discretion to grant a stay was to be exercised by reference to the overarching purpose and obligations contained in the Civil Procedure Act 2010.

The prosecution defendants submitted, that if the plaintiff was unsuccessful in the criminal proceedings, and if he then had a viable case for judicial review, he could continue with his proceeding.

The prosecution defendants relied on three principles in support of their summons. First the Court’s inherent discretion to grant a stay in the management of its own proceedings. For that proposition they relied on the Court of Appeal’s judgment in Tucker v State of Victoria.[23] That case concerned two civil proceedings, one in this Court, involving an ‘injunction leave application’ and an ‘injunction costs leave application,’ and the second, a defamation proceeding, in the Federal Court.
[23][2021] VSCA 120 at [121]–[122].

Secondly, the prosecution defendants relied on the public interest in the undesirability of two courts competing to see which determined the facts first. Time and effort would be wasted if it became common practice to bring actions in two courts involving substantially the same issues. The issues that the plaintiff requested this Court to decide pre-empted, or cut across, issues yet to be decided in the Magistrates’ Court. The plaintiff bore the onus of establishing his entitlement to be granted the declarations that he seeks.[24] But any such declarations would be defective because evidence has yet to be led and facts found, and therefore any declarations made would be based on an advisory opinion given in the abstract.
[24]Ibid 167–168.

The third, and in my opinion, most significant issue on which the prosecution defendants relied, was that criminal proceedings should not be fragmented. Judicial review proceedings should not be used to determine issues that could be raised in an appeal from Magistrates’ Court orders under s 109 of the Magistrates’ Court Act1989 or under s 272 of the Criminal Procedure Act 2009. To do so would be an abuse of process.[25] The prosecution defendants referred to the statement of Edelman J in Dimitrov v Supreme Court (Vic)[26] that:

there is a long standing principle, reiterated recently by Nettle J that [g]enerally speaking, a litigant must exhaust its statutory rights of appeal before this Court will contemplate an application for mandamus or prohibition [or certiorari] directed to achieving a result that in substance may be obtained on appeal.

[25]See KDSP v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2021) 95 ALJR 666 at 669 [3] and Crowther at [62].

[26](2017) 263 CLR 130 at 138–139,[19].

The prosecution defendants also relied on the proposition that the making of a declaration in a civil proceeding may prejudice the result of a criminal trial or be used to delay it. The administration of criminal justice ought to be left to the criminal courts.

The prosecution defendants submitted that the plaintiff was seeking to pre-empt the determination of central issues in the underlying criminal proceeding, namely whether his arrest or attempted arrest was lawful. He relied on a range of contentious arguments about the facts, including about the PSOs’ conduct, the directions they gave, the decisions they made, the opinions they formed and the powers that they relied on. The plaintiff’s arguments also raised factual issues about his conduct in response to the PSOs’ actions.

The prosecution defendants submitted that the plaintiff had subjected them and the Court to an evolving and amorphous set of allegations about the criminal proceeding in the Magistrates’ Court, which lacked coherent arguments that would justify the Court’s intervention. The plaintiff’s allegations were constantly changing in reaction to events in that proceeding. The Court and the other parties have received hundreds of pages of material and the defendants have been placed in an impossible and untenable position. The plaintiff’s conduct of this proceeding has not complied with the overarching purpose and obligations imposed by the Civil Procedure Act.

The criminal charges have been waiting determination for almost four years and this proceeding has been a cause of delay. The plaintiff could not rely on allegations that were outside the purview of judicial review, such as complaints about the decision to prosecute the plaintiff or other allegations about prosecutorial conduct.

The prosecution defendants submitted that the plaintiff’s reliance on an abuse of process claim emphasised that his complaints should continue to be presented to, and decided by, the Magistrates’ Court. A claim that a proceeding is an abuse of process should be argued and determined, at least in the first instance, in the court in which the proceeding has been commenced where findings of facts relevant to the application can be made. In any event, the plaintiff has not established that an abuse of process had occurred in connection with the Magistrates’ Court proceeding that would prevent it hearing and deciding the criminal charges. Therefore, the Magistrates’ Court has not been required to consider its options if an abuse of process were established, such as exclusion of evidence, or the ordering of further disclosure of evidence.

The other defendants, who participated in the hearing, supported the prosecution defendants’ application and submissions.

The plaintiff’s response to the prosecution defendants’ stay summons

The plaintiff submitted that the principle of avoiding fragmentation was not applicable because the trial of the charges in the Magistrates’ Court had not yet commenced. In special or exceptional cases, this Court will intervene in Magistrates’ Court proceedings and make a declaration on a legal point to save time. This was such a case and it involved few disputed facts.

The first special circumstance justifying the Court intervention in the Magistrates’ Court proceeding was that that Court’s orders, being orders of an inferior tribunal, if made in jurisdictional error were a nullity. A superior court, once informed that a collateral attack was being made on such orders, must consider the validity of that argument. In this case, the Magistrates should have decided that the Court lacked jurisdiction to hear the charges because the charge sheet was a nullity.

Secondly, the plaintiff relied on what he described as the extensive evidence of the prosecution’s serious misconduct and criminality, which made the proceedings an abuse of process. He gave instances of this alleged conduct. The prosecution had abandoned the indictable charges brought against the plaintiff as soon as they were put to the test. He had not been given a committal proceeding to which he had a right. His lawyer/client privilege had been breached and the VLSB took over cases and their files with which he had a connection. It had colluded with Victoria Police and provided them with information which led to the criminal charges being brought against him. The VLSB and the Commissioner wanted to disqualify the plaintiff from controlling a legal entity.

The Magistrates’ Court has been unable to deal with the proceedings and they have dragged on for over four years, bringing the administration of justice into disrepute. This Court would save time by intervening in this proceeding. The High Court in Jago v District Court of NSW,[27] accepted that a superior court may exercise remedies to cure oppressive proceedings in lower courts.
[27](1989) 168 CLR 23 (‘Jago’).The plaintiff also relied on Moeavo v Department of Labour [1980] 1 NZLR 464, which is referred to in Jago.

The plaintiff pointed to cases in which it had been accepted that judicial review of rulings or decisions made during criminal proceedings, or the grant of declaratory remedies in respect of them, could occur. These included the Full Federal Court’s decision in Flanagan v Commissioner of the Australian Federal Police.[28] In that decision, the Federal Court identified two categories of cases: the first category involving cases raising pure questions of law, emerging from a context of undisputed facts, especially questions, the resolution of which might clarify the law for other cases. In such cases a point of law could be quickly resolved. The second category included claims based substantially on contentious matters of fact, including questions of mixed fact and law, where intervention by a superior court exercising judicial review powers would not have those effects.[29] The plaintiff also relied on Sankey v Whitlam[30] and Director of Public Prosecutions v Kaba.[31]
[28](1996) 60 FCR 149 (‘Flanagan’).
[29]Ibid 188.
[30](1978) 142 CLR 1 (‘Sankey’).
[31](2014) 44 VR 526 (‘Kaba’).

The plaintiff submitted that sound reasons existed not to leave the issues raised in this proceeding for the Magistrates’ Court to decide. For instance, one Magistrate could not review another Magistrate’s decision, or decide collateral attacks on criminal charges. Nor can the Magistrates’ Court deal with allegations about the conduct of legal practitioners.

The plaintiff’s written submissions were voluminous and included the following:[32]
[32]In total, the plaintiff had circulated over 900 pages of written arguments. This did not include the plaintiff’s amended originating motion, which was in effect, another written submission.

a)‘General Law Principles, the Court’s Duty to Intervene in the Current Circumstance’ (26 April 2023);
b)‘The Mioch Proceeding Being a Nullity’ (26 April 2023);
c)‘Mioch Proceeding is a Nullity Applicable Legal Principles’ (1 and 9 May 2023);
d)‘General law Principles, Civil Procedure and Model Litigant Obligations’ (28 May 2023);
e)‘Allegations made in Mioch Review Proceedings’ (29 May 2023);
f)‘General Law Principles, Perversion of the Court of Justice (Abuse of Process)’ (30 May 2023);
g)‘General Law Principles, Jurisdictional Issues’ (30 May 2023);
h)‘Evidence of Prosecutorial Misconduct in Mioch and Olney Review Proceedings’ (30 May 2023);
i)‘Evidence of Prosecutorial Misconduct in the SK Proceedings Transcripts’ (30 May 2023);
j)‘Discovery of Evidence Submissions’ (30 May 2023);
k)‘The Plaintiff’s submissions’ (31 May 2023).

Most of these submissions contained quotations from numerous cases but without drawing any connection between the quotations and the issues that the Court had to decide.

Analysis of the prosecution defendants’ stay summons

In my opinion, the key issue in deciding the prosecution defendants’ temporary stay summons is the proper application of the principle against the fragmentation of criminal proceedings. I consider that principle to be more applicable in the present case than the principles discussed in cases like Tucker,[33] which concerned the exercise of the Court’s discretion to grant a stay of one of two competing civil cases.[34]
[33][2021] VSCA 120.
[34]Impiombato v BHP Group Ltd (2020) 143 ACSR 301; [2020] FCA 350 (Moshinsky J).

All parties agreed that judicial review proceedings should not be used to review decisions or rulings in ongoing criminal proceedings except in special or exceptional circumstances. They accepted that in the ordinary case criminal proceedings, once begun, should be allowed to follow their ordinary course unless it appeared for some special reason that it was necessary to allow a judicial review application.[35] The same principle applied if a plaintiff seeks declaratory relief. The use of the Court’s supervisory jurisdiction to pre-empt the determination of issues arising in the prosecution is impermissible.[36] At present, the Mioch proceeding is adjourned pending the determination of this proceeding.
[35]Gedeon v New South Wales Crime Commission (2008) 236 CLR 120, [23].
[36]Crowther, [54].

I will mention a few of the many cases that have applied the principle against the fragmentation of criminal proceedings. In Sankey v Whitlam[37], Gibbs ACJ stated:

In any case in which a declaration can be and is sought on a question of evidence or procedure, the circumstances must be most exceptional to warrant the grant of relief. The power to make declaratory orders has proved to be a valuable addition to the armoury of the law. The procedure involved is simple and free from technicalities; properly used in an appropriate case the use of the power enables the salient issues to be determined with the least possible delay and expense. But the procure is open to abuse, particularly in criminal cases, and if wrongly used can cause the very evils it is designed to avoid. Applications for declarations as to the admissibility of evidence may in some cases be made by an accused person for purposes of delay, or by a prosecutor to impose an additional burden on the accused, but even when such an application is made without any improper motive it is likely to be dilatory in effect, to fragment the proceedings and to detract from the efficiency of the criminal process… a court will be reluctant to make declarations in a matter which impinges directly upon the course of proceedings in a criminal matter. Once criminal proceedings have begun they should be allowed to follow their ordinary course unless it appears that for some special reason it is necessary in the interests of justice to make a declaratory order.

[37]Sankey at 25-26 (citations omitted).

In Chow v DPP[38] Kirby P stated:[39]

The High Court of Australia and this Court have repeatedly emphasised the undesirability of interference — whether by declaration or otherwise — in the conduct of criminal proceedings. Such interference is reserved to exceptional or special cases. … More than lip service must be given to injunctions of this kind. They are based upon the high public interest in the orderly conduct of criminal proceedings, which include the sentencing of persons convicted following a plea. They rest upon the avoidance of interruption of such proceedings by those who have access to funds and a determination to manipulate criminal prosecutions. The availability of appellate procedures following conviction and sentence and the possibility that many problems disappear, or are resolved, at first instance if only cases are allowed to take their ordinary course provide further reasons to restrain an over-enthusiastic response to interlocutory claims for judicial review of criminal proceedings.

[38](1992) 28 NSWLR 593.

[39]Ibid 599 (citations omitted).

In Chief Executive Officer of Customs v Jiang,[40] O’Loughlin, North and Weinberg JJ, in the Federal Court, stated:[41]
[40](2001) 111 FCR 395 (‘CEO of Customs v Jiang’).
[41]Ibid 399 at [10]-[12] (citations omitted).

In Seymour v Attorney-General (Cth) Jenkinson J, as a member of a Full Court, emphasised the strength of the public interest in the expeditious resolution of accusations of crime. His Honour commented:
The longer such an accusation remains unresolved the greater the risk of serious harm to the community. Those risks are multifarious: the fading of witness's recollections, the diminution of public confidence in the administration of the criminal law, the prolonging of fears and hatreds which the resolution of criminal charges tends to allay, and uncertainty as to the course which the life of the accused is to take, and not infrequently uncertainty as to the courses of other lives, are perhaps the more obvious and the most common. Those considerations of public interest are of great weight …

This passage has been cited with approval on many occasions, most recently by the Full Court in Flanagan v Commissioner of Australian Federal Police.
It is clear that civil courts appreciate that it is of vital importance that regulatory bodies and law enforcement agencies not be hindered unduly in their task of investigating fully allegations of criminality. The civil courts also appreciate the need to ensure that the work of the criminal courts is not frustrated by such applications, particularly those which are quite unmeritorious and designed to achieve little more than delay. Most complaints regarding decisions taken in the context of the criminal justice process can adequately be addressed by the criminal courts. Civil courts generally deny judicial review of such decisions on discretionary grounds.

The principle against the fragmentation of criminal proceedings was again applied in the recent decision of the Western Australian Court of Appeal of Emanuel Exports Pty Ltd v Department of Primary Industries and Regional Development.[42] The Court of Appeal decided that the interests of justice distinctly favoured allowing the trial to proceed on its ordinary course leaving the constitutional question relied on by the appellant to be resolved on any appeal against a decision to convict or acquit the appellant. The constitutional question was whether a State law was inconsistent with a Commonwealth law under s 109 of the Commonwealth Constitution. The Court noted that the parties had invited the Court to proceed to determine the constitutional question without any clear statement of the facts on which it would make that determination. The Court stated:[43]

As the High Court emphasised in Bass v Permanent Trustee Co Ltd, it is important that any determination by this court be based on facts which are at least clearly identified and, in many cases, agreed or proved. A factor counting against the exercise of this court's discretion to grant relief by way of judicial review is that there is no clear statement of the facts which the parties have agreed or assumed and some significant facts are in dispute.
Fourthly, and most significantly, the manner in which, in the circumstances of this case, the exercise of judicial review jurisdiction would involve the fragmentation of pending criminal proceedings counts strongly against the exercise of discretion to grant relief.

[42][2023] WASCA 36 (Buss P, Mitchell and Beech JJA).

[43]Ibid at [37]-[38] (citations omitted).

The plaintiff relied on this Court’s decision in Kaba as an example of special circumstances which justified the judicial review of a Magistrates’ Court rulings. In that case the defendant was a passenger in a car that had been pulled over by police. The defendant, expressing indignant anger with the delay caused by the random stop, left the vehicle and began to walk towards nearby flats. The police followed the defendant, and repeatedly pressed him for his name and address, which he refused to provide, protesting about racist harassment. He was arrested and charged with various offences. The defendant claimed that the name and address check breached his right to freedom of movement and was an invasion of his privacy. At a preliminary hearing, the Magistrate accepted his arguments and refused to admit the police officer’s evidence, a decision which would have led to the prosecution case collapsing. The prosecution successfully sought judicial review of the Magistrate’s ruling. Bell J explained why the principle against fragmentation should not be applied:[44]

Despite the importance of the principle against fragmentation, this is one of those exceptional cases in which judicial review should be granted upon the ground that the Magistrate’s ruling to exclude the evidence constituted an error of law on the face of the record and the discretion of the court should be exercised in favour of granting relief. The ruling of the Magistrate, if upheld, will cause the complete collapse of the prosecution case.

[44]Kaba [18].

After considering the parties’ submissions, I have concluded that the Court should grant a temporary stay of this proceeding until the Magistrates’ Court has determined the criminal charges and any appeal from, or judicial review application of, that determination has been decided. I consider this to be the appropriate order based on the principle against the fragmentation of criminal proceedings. In addition to permit this proceeding to proceed while the Magistrates’ Court prosecutions are ongoing would be an abuse of process. I have reached those conclusions for the following reasons.

The Magistrates’ Court proceeding has commenced. I consider that there are no special or exceptional circumstances justifying this Court permitting the fragmentation of that criminal proceeding. The Magistrates’ Court is the trial court and can deal with all the procedural and evidentiary issues that arise. The plaintiff seeks orders in this Court that the Mioch proceedings should be dismissed because the Magistrates’ Court lacks jurisdiction to hear and determine it. But that is a matter for the Magistrates’ Court to decide in the first instance. The charges have been waiting long enough to be heard and it is in the interests of the parties and the witnesses for them to be heard and determined in the Magistrates’ Court as soon as is reasonably possible. Many of the allegations that plaintiff makes about the conduct of the prosecution, the prosecutors and the VLSB involve questions of fact that the Magistrates’ Court can decide if it considers them relevant. As the Federal Court stated in CEO of Customs v Jiang:[45]

Most complaints regarding decisions taken in the context of the criminal justice process can adequately be addressed by the criminal courts. Civil courts generally deny judicial review of such decisions on discretionary grounds.

[45]Jiang at [12].

This is not a case where this Court’s decision on one point of law will decide all the issues and the allegations that the plaintiff seeks to raise. Rather, the plaintiff’s case is likely to attempt to raise evidence of facts concerning the bringing of the criminal charges and the hearings in the Magistrates’ Court. In addition, the relevant defendants may wish to lead or tender evidence.

There is another relevant consideration. I refer later to the plaintiff’s desire to widen these proceedings and add additional defendants. To permit that to occur would result in this proceeding becoming a ‘rolling’ judicial review proceeding or a rolling proceeding seeking declaratory relief. It would be inappropriate to allow the plaintiff to add claims and join defendants while the Magistrates’ Court hearing proceeds. To permit that to occur would risk turning this proceeding into an inquiry into the plaintiff’s dealings with the police and the Courts, rather than a proceeding to determine specific legal issues. In R v Dolan Ex parte v Secretary of State for Health and Social Care[46] the Court of Appeal of England and Wales explained why such ‘rolling’ proceedings are inappropriate:[47]

In a number of recent cases this Court has noted that there is ‘increasing concern about the need for appropriate procedural rigour in judicial review cases’: see R(Spahiu) v Secretary of State for the Home Department: Practice Note at para 2, where earlier authorities are set out (Coulson LJ). The present case leads us to repeat that concern.
Procedural rigour is important not for its own sake. It is important in order for justice to be done. It is important that there must be fairness to all concerned, including the wider public as well as all the parties. It is important that everyone should know where they stand, so that, for example, the defendant can properly prepare evidence in a timely manner.
This Court has also deprecated the trend towards what has become known as a ‘rolling’ approach to judicial review, in which fresh decisions, which have arisen after the original challenge and sometimes even after the first instance of judgments and is sought to be challenged by way of amendment.

[46][2020] EWCA Civ 1605; [2021] 1 WLR 2326 (citations omitted).

[47]Ibid 117-118 (Lord Burnett CJ, King and Singh LJJ).

It is significant that the Court is not being asked to dismiss a judicial review proceeding or a proceeding seeking declaratory relief because of the risk of fragmentation of criminal proceedings, but to temporarily stay it. As previously mentioned, I consider that it is appropriate to make such an order.

In deciding to grant the temporary stay, I have not decided whether the prosecutorial misconduct allegations in ground 4 of the plaintiff’s proposed orders are to be accepted. But I have considered the nature of all the plaintiff’s claims made in his originating motion because they are all relevant to, and were the subject of submissions in connection with, the prosecution defendants’ stay summons. They detail the claims that the plaintiff seeks to make in this proceeding.

I do not accept the plaintiff’s argument that the prosecution defendants’ application for a stay breaches the Model Litigant Guidelines. This is because the prosecution defendants invoke a well-accepted and important legal principle that the fragmentation of criminal proceedings should not be permitted except in special or exceptional circumstances. For similar reasons, I do not consider that the prosecution defendants’ application is an abuse of process.

I do not accept the plaintiff’s submission that the temporary stay should not extend to his claims against the VLSB and persons associated with it. While the VLSB is not a party to the criminal proceeding in the Magistrates’ Court, the plaintiff’s claims against it in this proceeding would require findings about facts that are likely to be the subject of disputed evidence in the Magistrates’ Court. That disputed evidence may include allegations about the nature of any contact between Victoria Police and the VLSB and whether any such contact contributed to the prosecution of the plaintiffs in the Olney prosecution.[48] This Court should not make findings of fact that ought to be made by the trial court, the Magistrates’ Court.
[48]Magistrates’ Court of Victoria proceedings N10047659 and N10254563.

I also consider that the temporary stay should extend to the proceedings against the remaining defendants, the tenth and fifteenth defendants. Little attention was given to the claims against them, but is seems probable that to allow the claims against those defendants to proceed at this point, would fragment the criminal proceedings in the Magistrates’ Court.

Proposed orders 7 and 8 sought against the Prosecution and the VLSB

Although, I have decided that this proceeding should be temporarily stayed, I will express my conclusions on the other orders that the plaintiff seeks and about which I heard submissions on 30 and 31 May 2023. They concerned proposed orders 7 and 8, which seek orders that the prosecution provide discovery and that the VLSB release documents to him.

As previously mentioned, the plaintiff seeks the following orders in respect of the production of documents:

7. Order that the Prosecution immediately discover to the Plaintiff, all documents that fall into at least one of the following categories:
7.1 All documents covered by the prosecutorial duty of disclosure, either pursuant to statute or general law;
7.2 All documents concerning the State’s decision to bring charges against the Plaintiff in the Mioch Proceeding;
7.3 All documents concerning the collection, handling and use of evidence in the Mioch Proceeding; and
7.4 All documents concerning the Prosecution’s or their agents’ communication with any party in relation to the proceedings contemplated or commenced by Victoria Police (or the State) against the Plaintiff.

8. Order the LSB+C to promptly release to the Plaintiff, all the documents within their possession, including any notes as well as all documents pertaining to their communication with any party, in relation to the proceedings contemplated or pursued against the Plaintiff by Victoria Police (or the State).

The plaintiff’s arguments in support of proposed orders 7 and 8 were as follows. The police prosecutors were provided with privileged information from his lawyers, after the VLSB appointed the External Manager, who assumed responsibility for the Law Firm’s (Erudite Legal’s) clients. He relied on Mallard v The Queen[49] and its consideration of the prosecutors’ duty of disclosure. He sought unredacted copies of documents, but had been unsuccessful in requesting Magistrates to make orders for discovery. He identified statements that had not been produced to him as including that of the VCAT Operations Manager who administered VCAT’s CCTV surveillance system, which recorded the incident of 19 March 2019.
[49](2005) 224 CLR 125.

The submissions in response of the prosecution defendants and the VLSB

The VLSB opposed the plaintiff’s application, submitting that there was no evidence to support it and that it was not a party to the underlying criminal proceeding. The documents the plaintiff sought could not assist him in this proceeding, which did not challenge any decision by the VLSB.

Secondly, the VLSB submitted that the plaintiff’s allegations against it were purely speculative and lacked any foundation in evidence. An example was the claim in the plaintiff’s proposed amended originating motion that the VLSB, or its employees, agents or those lawyers engaged on its behalf, had colluded with Victoria Police or prosecutors to pervert or attempt to pervert the course of justice. Discovery or compulsory disclosure of documents in judicial review proceedings is granted in limited circumstances and the plaintiff had provided no proof that documents relevant to that claim existed.

Thirdly, the plaintiff’s evidence did not establish that any documents which they sought, assuming they existed, were before the decision-makers in the underlying criminal proceeding. The decision-makers were the prosecutors when they exercised their prosecutorial discretion, or conducted the proceeding and the Magistrates when they made orders or decisions that the plaintiff challenges.

Fourthly, even if the documents that the plaintiff sought did exist, there was no basis to suspect that he has a good case which might be aided by their discovery or production.

Fifthly, it was apparent from the proposed orders 7 and 8 that the materials sought have little or no relevance to the current proceeding. They appeared to concern the VLSB’s decisions about the incorporated legal practice People Shop Pty Ltd trading as Erudite Legal. The VLSB relied on the evidence of Mr J Mazaris, its Senior Legal and Governance Officer, that the plaintiff had issued 21 summonses in the criminal proceedings seeking identical or related categories of documents some of which are now sought by way of discovery in this proceeding. Those summonses had been set aside by the Magistrates’ Court, demonstrating that the plaintiff’s applications for documents were an abuse of process and vexatious.

Sixthly, the VLSB’s agents and staff had not yet been given an opportunity to reply to the plaintiff’s allegations.

The prosecution defendants opposed the plaintiff’s proposed orders 7 and 8 on the following grounds. Discovery cannot be sought of documents concerning the prosecutor’s conduct of the trial, including disclosing documents, as that is a matter immune from judicial review and is to be regulated by the trial judge or magistrate,[50] including by ruling on the issuing of subpoenas. The plaintiff’s application for discovery and disclosure of documents cuts across the power of the Magistrates’ Court to make such orders.

Analysis of plaintiff’s application for orders against the prosecution for discovery and that the VLSB release documents to him

[50]Reliance was placed on Whitehorn v The Queen (1983) 152 CLR 657, 665 (Deane J); Cannon v Tahche (2002) 5 VR 317, [56]-[60].

I refuse the orders that the plaintiff seeks in proposed orders 7 and 8. The plaintiff’s application for orders that the prosecution discover documents extends beyond the prosecution’s duty of disclosure. It extends to all documents concerning the State’s decision to bring charges against him in the Mioch proceeding, documents concerning the collection, handling and use of evidence in that proceeding and all documents concerning the prosecution’s or their agents’ communication with any party in relation to the proceedings contemplated, or commenced by Victoria Police or the State against him. These proposed orders are clearly fishing and speculative about the existence of documents and extends considerably beyond the requirements of prosecutorial disclosure. Discovery in judicial review or analogous proceedings is generally not ordered as of right and an application based on the possibility that relevant documents might exist is insufficient to obtain an order.[51]
[51]Minister for Immigration and Multicultural Affairs v Wong[2002] FCAFC 327 [30].

The Magistrates’ Court must decide whether to order the further disclosure of documents. This Court does not normally supervise or manage Magistrates’ Court’s decisions about the disclosure of documents or discovery and no reason has been established why it should do so in this case.

Proposed order 8 seeks that the Commissioner promptly release to the plaintiff all the documents within their possession, including any notes as well as all documents pertaining to the proceedings contemplated or pursued against the plaintiff by Victoria Police or the State.

I do not consider that the plaintiff has established an entitlement to an order that the Commissioner release documents to him, especially as he is seeking declarations in this proceeding that the VLSB’s conduct and that of its agents constitutes a crime. The orders sought are again fishing or speculative.

The VLSB and the Commissioner are parties to the Magistrates’ Court proceeding. There is no connection between many of the declarations that the plaintiff seeks in this Court and the criminal proceedings pending in the Magistrates’ Court, which allege that the plaintiff resisted the PSOs. For example, he seeks a declaration that the VLSB acted invalidly in not investigating the allegations made by Mr P Ansell against the VLSB’s agents on behalf of the plaintiffs, but he is not a party to this proceeding.

The plaintiff’s proposed amended originating motion of 10 May 2023

I should mention that the plaintiff circulated to the parties a proposed amended originating motion dated 10 May 2023. It is a cross between an originating motion and submissions and make additional claims against persons who it seeks to join as parties. They include barristers, the Director of Public Prosecutions and lawyers from the OPP, Police and Crown Prosecutors, solicitors from the VGSO, the Chief Commissioner of Police and several police officers, whom the plaintiff alleges are ‘culpable of prosecutorial misconduct and have acted in breach of their statutory duties.’[52]
[52]The plaintiff’s Amended Originating Motion dated 10 May 2023 at [6].

I explained to the plaintiff why I would not grant him leave to file this proposed amended originating motion. I consider that it contains many grounds, attacking or challenging conduct of proposed defendants, without claiming a remedy or relief in respect of that conduct of any relevance to issues in this proceeding. Nor does the proposed originating motion adequately identify the legal issues it seeks to have decided and the basis for the remedies that it seeks. It does not contain a statement of arguable claims or allegations against many of the proposed defendants, but makes generalised allegations against many people, including, two of the Magistrates whose rulings or decisions the plaintiff challenges. In some instances it does not identify the particular conduct which the plaintiff challenges. In other instances, it challenges court rulings and seeks findings that could only be relevant in a criminal trial, for example, that various proposed defendants have perverted or attempted to pervert the course of justice. It would, in effect, have this Court take over the direction of the prosecution pending in the Magistrates’ Court.

The proposed originating motion would also be an example of a rolling review by which an amendment to an original claim for judicial review or declaratory remedies is sought to challenge the legality of subsequent events. As I have mentioned, the courts have disapproved of such an approach.

In response to these considerations, the plaintiff advised the Court that he could remove from his proposed amended originating motion all the material that was not in issue.[53] He sought a date by which he could provide a new version of a proposed originating motion. But, he informed the Court that the existing originating motion, that of 20 January 2023, clarified or contained the specific allegations that he raised in respect of the prosecution parties.[54] I have therefore decided the matters in this judgment by reference to the existing originating motion.
[53]T 102.
[54]T 160.

However, the content of the plaintiff’s proposed amended originating motion and the many additional parties that it seeks to join, confirmed my view that the proceeding that the plaintiff seeks to bring in this Court would significantly fragment the criminal proceeding in the Magistrates’ Court.

In those circumstances, I do not consider that the plaintiff should be given leave to file the proposed amended originating motion, nor be given leave to prepare another amended originating motion. I therefore refuse the plaintiff’s application for the orders sought in paragraphs 9 and 10 of the document dated 26 April 2023 titled ‘Plaintiff’s Proposed Orders’.

Twenty-fifth and Twenty-Sixth Defendants – Court Services Victoria and VCAT’s Chief Executive Officer

Two of the persons who the plaintiff sought to join as parties to his proposed amended originating motion were the proposed twenty-fifth and twenty-sixth defendants, being Court Services Victoria and the Chief Executive Officer of VCAT. They were represented by counsel and opposed their joinder adopting the prosecution defendants’ submissions. The proposed claims against them included that they had improperly withheld evidence. They disputed that allegation and pointed out that the plaintiff’s summonses issued in the Magistrates’ Court had been set aside and argued that the claims that appeared to have led the plaintiff to issue those summonses could not be re-agitated in this Court.

As the plaintiff did not pursue his application for leave to file his proposed amended statement of claim and join additional parties, it is not appropriate to say anything further about its claims against the proposed twenty-fifth and twenty-sixth defendants.

Plaintiff’s applications after judgment was reserved

On 7 June 2023, my chambers received an email from the plaintiff in which he sought an urgent hearing to ‘correct the record before the Court’, as he put it. He said that after the conclusion of the hearing on 31 May 2023, his associate, Ms L Xu, had identified a document that the defendants had sought to suppress from the record in this proceeding. He said that he then contacted counsel for the prosecution defendants, alerted him to the issue and informed him that he would be contacting the Court to seek an urgent hearing to correct the record. The Court was not provided with a copy of the document nor informed of what it contained.

In response to the plaintiff’s email, I ordered that he file an affidavit to support his claim and any submissions on which he intended to rely by 19 June 2023. No such submissions were received. Therefore, I will give the matter no further attention.

Plaintiff’s reopening application

On 30 October 2023, the plaintiff emailed to the Court an application to reopen the Olney proceeding, S ECI 2022 04808 Kuksal and Xu v State of Victoria and Ors, in which I reserved judgment on 10 August 2023. The application was supported by an affidavit by Ms Lulu Xu. Mr Kuksal did not make a separate written application for the reopening of this proceeding in which I reserved judgment on 31 May 2023. But, in an email accompanying the Olney reopening application, he requested that his application be taken as a request ‘for the same measures in relation to the proceeding S ECI 2023 00183’ i.e. this Mioch proceeding. All parties proceeded on the basis that Mr Kuksal was making a reopening application in this proceeding as well as in the Olney proceeding and I will proceed on that basis.

If the reopening was granted, Mr Kuksal sought orders that the amended originating motion be accepted, permitting him to issue subpoenas to make up for the absence of a discovery order and for the scheduling of an urgent hearing for the determination of the Magistrates’ Court jurisdiction to hear the charges prior to the Court commencing to do so.

The principles governing the reopening of a case were described by Kenny J in Inspector General in Bankruptcy v Bradshaw,[55] who identified four classes of cases in which a Court may grant leave to reopen taking into account the interests of justice:
[55][2006] FCA 22 [24]. See CC Containers Pty Ltd v Lee (No 5) [2013] VSC 619 [8] (Ferguson J).

(a) where fresh evidence, unavailable or not reasonably discoverable before, becomes known and available;

(b) where there has been inadvertent error;

(c) where there has been a mistaken apprehension of the facts; and

(d) where there has been a mistaken apprehension of the law.

In Spotlight Pty Ltd v NCON Australia Ltd[56] the Court of Appeal observed:

There are good reasons why the circumstances must be exceptional before a court may allow a case, having been closed and judgment reserved, to be reopened. The need for finality in litigation is one. It is no answer at this point to say that the further evidence sought to be adduced by the respondent in this case is confined to the quantum of damages. Were applications to reopen to be allowed almost as of course, such applications would be regularly made. That would add enormously to inefficiencies in the administration of justice, even if the reopened hearing was strictly confined. The discipline which ought to attend the conduct of litigation by highly competent litigators would also inevitably decline. The very strict rule that, subject to any applicable process of appeal or review, the presentation of their cases by parties to litigation must conclude with the end of the trial, has another important justification. It is that, very often, the boundaries of the reopened issues would be hard to define and is difficult to protect. The reopened hearing would be bedevilled by arguments about whether one party or the other was seeking to take advantage of the reopening to polish parts of its case which were more or less within the scope of the reopened proceeding but not clearly on one side or other of the prescribed limits.[57]

[56][2012] VSCA 238.

[57]Ibid [17]–[18].

I conducted the reopening hearing on the basis that the plaintiff would provide me with a summary of the evidence on which he would rely if I thereafter decided to order the reopening of the proceeding.

The new evidence on which Mr Kuksal sought to rely was contained in Exhibits LX-6 and 7 to Ms Xu’s affidavit filed in support of his reopening application in the Olney proceeding.[58] The new evidence that might be relevant in this proceeding included police records concerning the incident at the VCAT building on 19 March 2009, including electronic patrol duty returns and CAD event reports and reports and notes of police officers who attended the VCAT building following the incident. The plaintiff contended that the evidence included a PSO report that clarified that Mr Kuksal had placed PSO Benning under arrest and which, he argued, indicated that PSO Benning’s affidavit was fraudulent.[59] He also contended that the new evidence disclosed that the police had received advice that the Court Security Act contained no power of arrest. He argued that the Mioch prosecution was commenced to justify his arrest.
[58]Kuksal v State of Victoria S ECI 2022 04808.
[59]T 134-5 (9 November 2023).

Mr Kuksal argued that the underlying proceeding or subject matter was the criminal charges pending in the Magistrates’ Court. He referred to decisions which suggest that in determining whether a proceeding is criminal or civil, reference must be made to the underlying proceeding. The decisions included Director of Public Prosecutions v Filonis (No 2),[60] Perkins v County Court of Victoria,[61] Clarkson v Director of Public Prosecutions,[62] the decision of the English and Wales Court of Appeal in R (McAtee) v The Secretary of State for Justice[63] and the decision of the United Kingdom Supreme Court in R(Belhaj) v Director of Public Prosecutions.[64] Cussen J in R v Watt; Ex parte Slade[65] had reached a similar conclusion.
[60][2023] VSC 323.
[61](2000) 2 VR 246 [20]–[21].
[62][1990] VR 745.
[63][2019] 1 WLR 3766; [2018] EWCA Civ 2851.
[64][2019] AC 593.
[65][1912] VLR 225.

Mr Kuksal argued that the case should be reopened because it had been conducted under the misapprehension of law that it was a civil proceeding, whereas in fact it was a criminal proceeding. The fact that this was a criminal proceeding made the reopening more necessary. If this proceeding had been conducted as a criminal proceeding, he would more readily have been able to issue subpoenas and the Court would have been obliged to ensure that he had legal representation. This Court would also have been obliged to allow him to present more video of the incident which he had prepared. He described his position as defensive in that he should not be regarded as bringing the proceeding as a plaintiff, but rather as reacting to his prosecution by the State.[66]
[66]Mr Kuksal relied on Wandsworth London Borough Council v Winder [1985] AC 461.

I do not accept that the Court was under a misapprehension of law as Mr Kuksal contends. I accept that a proceeding seeking declaratory or judicial review remedies in respect of criminal proceedings in a trial court may be regarded as a criminal proceeding, particularly for the purposes of statutory provisions which apply to criminal proceedings. Proceedings seeking declarations or judicial review remedies are often commenced in respect of criminal proceedings. However, they are commenced under the Court’s civil rules of procedure and are heard in the Court’s civil jurisdiction.[67] That is why the Full Federal Court in Chief Executive Officer v Jiang[68] referred to ‘civil courts’ not hindering or frustrating the work of the ‘criminal courts’ by granting judicial review remedies. The Court of Appeal of England and Wales’s judgment in Ewing v Director of Public Prosecutions[69] supports that approach I consider that as this proceeding is subject to this Court’s civil procedure, it is subject to the provisions of the Civil Procedure Act.[70]
[67]Order 56 of the Supreme Court (General Civil Procedure) Rules 2015 and Civil Procedure Rules 1998 (UK) Pts 8 and 54.
[68](2001) 111 FCR 395, 399 [10]-[12].
[69][2010] EWCA Civ 70[33].
[70]A matter I considered in Western Truck Towing Pty Ltd v Magistrates’ Court of Victoria [2014] VSC 88.

In any event, a determination that this proceeding was a criminal proceeding, would have made no material difference to the procedure adopted for its conduct. The Criminal Procedure Act 2009 and the Supreme Court (Criminal Procedure) Rules 2017 would not have applied, as they apply only to criminal proceedings commenced under that Act. I would still have decided that a temporary stay of this proceeding should be granted to prevent the fragmentation of the criminal prosecution in the Magistrates’ Court and because this proceeding was an abuse of process.

Nor do I accept that the Court was under the second misapprehension of law that Mr Kuksal contended. That was that the Court had misapprehended that s 49 of the Civil Procedure Act abrogates the operation of Chapter 3 of the Evidence Act 2008 in relation to the admissibility of evidence. Mr Kuksal has previously advanced this argument in various ways during this proceeding. However, his argument misses the point of the overarching purpose of the Civil Procedure Act which is to facilitate the just, efficient, timely and cost-effective resolution of the real issues in dispute. The limits that I placed on the length of affidavits and submissions of all parties were directed at assisting the Court and the parties to achieve that overarching purpose. The powers in s 49 permit such directions and include limiting the time to be taken by a trial, limiting the time a party may take to present their case, limiting the time to be taken in examining, cross-examining or re-examining witnesses, limiting the length or duration of written and oral submissions and limiting the number of documents to be prepared or that a party may tender in evidence.[71] The exercise of these powers is not directed to the admissibility of evidence, but to the quantity of evidence and the length of submissions that should be permitted consistently with achieving the overarching purpose of the Civil Procedure Act. The Court can give such directions whether or not they are sought by the parties.
[71]Civil Procedure Act 2010 s 49(3)(c),(d), (f) and (g).

Mr Kuksal repeated a number of the submissions he made at the hearing that concluded on 31 May 2023. He submitted that he had been denied procedural fairness because he was not allowed to file some of the evidence on which he relied and that the Court had controlled the manner in which submissions were made. I have dealt with those arguments in the previous paragraph.

Mr Kuksal again argued that that the Court had misapprehended that there was a proceeding before the Magistrates’ Court, when in fact there was not because the charge sheet and the charges were a nullity. I consider that it is for the Magistrates’ Court to determine if there is any invalidity in the charge sheet. Mr Kuksal also argued that the new evidence showed that the charges had only been brought to justify his arrest on 19 March 2019. The bail conditions imposed on him were not valid or appropriate for the summary offences with which he was charged. These arguments do not, in my opinion, reveal misapprehensions of fact, but challenge the validity of the charges brought against Mr Kuksal, which is a matter for the Magistrates’ Court to decide.

Mr Kuksal argued that s 85 of the Constitution Act 1975, which identifies this Court as the superior Court of Victoria, required it to not allow the administration of justice to be brought into disrepute. That would occur when Victoria Police officers committed fraud or perjury. He contended that the reopening application required the Court to make an evaluative judgment[72] and to extent that its decision involved the exercise of a discretion, it could not be exercised in an unjust manner. Therefore, the Court could not refuse his reopening application.
[72]Gogo v Attorney-General (NSW) [2022] FCA 70 [56]–[57] and Urban Transport Authority of NSW v Nweiser (1992) 28 NSWLR 471.

Mr Kuksal submitted that his proposed amended originating motion should have been allowed. In his reply submissions, he sought to rely on a further amended originating motion, which he described as ‘fundamentally restructured’ and which he had completed on 28 September 2023. He said that he had forgotten to seek leave to file it when making his submissions the previous day. He contended that following the ‘better disclosure’ of prosecution documents, he had been able to better particularise his allegations. He argued that counsel for the State had not opposed his previous application for amendment. I ruled that I would only consider giving leave for him to rely on this further amended originating motion if I granted him leave to reopen the proceeding.

Submissions opposing the reopening application

The State of Victoria opposed Mr Kuksal’s reopening application arguing that none of the material on which he relied established that the overall justice of the case justified the hearing’s reopening. Many of the plaintiff’s points concerning police conduct could be raised in cross-examination or submission in the Magistrates’ Court proceeding.

The State submitted that it is an improper use of the Court’s powers for a plaintiff to seek to use its supervisory jurisdiction to pre-emptively determine the merits of a possible defence that may be available to them. The Magistrates’ Court has power to control proceedings, whether they are criminal or civil.

The VLSB also relied on countervailing interests that it submitted made a reopening of the hearing inappropriate. It stressed the importance of finality and that a judicial review proceeding was not an opportunity for the Court to conduct a full trial and make findings of fact about many issues. Nor was it an opportunity to interrogate every decision made in the running of the Magistrates’ Court proceeding. The VLSB argued that the continuation of these proceedings was becoming oppressive given their lack of forensic purpose. The reopening of these interlocutory hearing will lead to an unjustified use of court time.

Decision on the plaintiff’s reopening application

I first state that I do not accept the first plaintiff’s repeated submissions that he has not had a reasonable opportunity to present his case because of limitations the Court imposed on the length of his affidavits and submissions. The two proceedings in which I have delivered judgment today have occupied 13 days of Court time, including three substantial directions days. My estimate is that Mr Kuksal has taken a substantial majority of the time in both proceedings. As I have stated, the Court made directions and procedural rulings, including about the length of affidavits and submissions in an attempt to achieve the overarching purpose of civil litigation which is to facilitate the just, efficient, timely and cost-effective resolution of the real issues in dispute.[73]
[73]Civil Procedure Act 2010 s 7(2).

I refuse the application to reopen the proceedings. I do not consider that the interests of justice require that the new information or evidence should be permitted to be relied on in this proceeding. The information or evidence would not alter my decision to grant a temporary stay of this proceeding. It may be relevant to the Magistrates’ Court determination of the criminal charges, but that is for the presiding Magistrate to assess and not for this Court to supplant the Magistrate’s role. Mr Kuksal can attempt to rely on that evidence, use it in cross-examination in the Magistrates’ Court and in making submissions to the Magistrate. Many of the arguments that Mr Kuksal makes were made during the earlier hearing.

As I have stated, before this Court could consider granting the declarations that Mr Kuksal seeks, evidence about the facts on which those declarations would be based would have to be led and the facts found. The persons against whom findings were sought would have to be given the opportunity to participate in the hearing. That process would require many hearing days and, on the plaintiff’s case, would have to occur before the Magistrates’ Court proceedings resumed and were completed. However, even if that process occurred, it would result in the Court being asked to make findings about the plaintiff’s allegations and whether various people have engaged in criminal conduct without them being given the rights and protections afforded by a criminal trial.

As I have said, this Court does not manage Magistrates’ Court proceedings, but save in special or exceptional cases, waits to hear any appeals from, or judicial review challenges to, final orders of that Court. Mr Kuksal’s reopening application further illustrates that he is seeking this Court’s intervention to dismiss the Magistrates’ Court proceeding by challenging many individual events and bits of evidence in that proceeding and seeking to have this Court perform the functions that that Magistrates’ Court has the duty to perform. To permit that to occur would lead to the ongoing fragmentation of the criminal prosecution in the Magistrates’ Court.

Additional matters

For the sake of completeness, I add that, for the above reasons, there is no basis for this Court to order the dismissal of the Mioch prosecutions in the Magistrates’ Court as the plaintiff’s originating motion claims.

Applications relating to Recently Discovered Evidence

Finally, I note that on 14 December 2023 and 19 December 2023, Mr Kuksal and Ms Xu sent to the Court a ‘Summary of Recently Discovered Evidence’. None of that evidence appeared to relate to this proceeding, as distinct from the Olney proceeding. In my judgment in the Olney proceeding, I have considered the summaries of newly discovered evidence and refused to give leave to rely on it or to reopen that proceeding to consider admitting it. To the extent that the recently discovered evidence is said to be relevant to this proceeding, I refuse leave to the plaintiff to rely on it for the same reasons that I refused the plaintiffs leave in the Olney proceeding.

Conclusion

I will order that:

(a) The plaintiff’s application dated 30 October 2023 to reopen the hearing in which judgment was reserved on 31 May 2023 is dismissed;

(b) The plaintiff’s written applications made by email on 11 and 14 December 2023 to rely on ‘Newly Discovered Evidence’ is dismissed;

(c) The plaintiff’s written applications made by email on 15, 16 and 19 December 2023 to rely on ‘Newly Discovered Evidence’ is dismissed;

(d) The plaintiff’s applications for leave to rely on:

(i) the proposed amended originating motion dated 10 May 2023;

(ii) the proposed amended originating motion dated 20 January 2023 and provided to the Court on 10 November 2023;

are refused.

(e) The plaintiff’s applications for:

(i) the affirmation of the matters stated in paragraph 3 of the plaintiff’s document dated 26 April 2023 titled ‘the Plaintiff’s Proposed Orders’ is refused.

(ii) the orders sought in paragraphs 7 and 8 of the plaintiff’s document dated 26 April 2023 titled ‘the Plaintiff’s Proposed Orders’ are refused.

(iii) the orders sought in paragraphs 5, 6, 9 and 10 of the plaintiff’s document dated 26 April 2023 titled ‘the Plaintiff’s Proposed Orders’ are refused.

(f) This proceeding is stayed until the determination of the remaining charges against the plaintiff, Shivesh Kuksal, being Magistrates’ Court of Victoria proceeding number K12128195 and the determination of any appeal from, or judicial review (including applications for declarations) of, the determination of those charges.

I will give directions for written submissions about costs of and incidental to the hearings on 26 April, 30 and 31 May, the application for reopening made on 30 October 2023, and the hearings on 9 and 10 November 2023.

SCHEDULE OF PARTIES

BETWEEN:
SHIVESH KUKSAL	Plaintiff
AND
JAMES MIOCH	First Defendant
NICOLA STEVENSON	Second Defendant
BIANCA MOLETA	Third Defendant
BRENDAN SMITH	Fourth Defendant
COLIN BENNING	Fifth Defendant
JANINE WATSON	Sixth Defendant
BRODERICK WELLS	Seventh Defendant
PAUL HARRIS	Eighth Defendant
ANDY YAP	Ninth Defendant
MAGISTRATE ROBERT STARY	Tenth Defendant
THE STATE OF VICTORIA	Eleventh Defendant
THE VICTORIAN LEGAL SERVICES BOARD	Twelfth Defendant
FIONA MCLEAY	Thirteenth Defendant
OFFICE OF PUBLIC PROSECUTIONS VICTORIA	Fourteenth Defendant
JUSTICE JACINTA FORBES	Fifteenth Defendant

[2023] VSC 624

20 December 2023