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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Kuksal v Mioch

Details

AGLC: Kuksal v Mioch [2023] VSC 624
Case: [2023] VSC 624
Decision Date: 20 December 2023

CaseChat Overview and Summary

Kuksal v Mioch involved an application for declaratory orders concerning the jurisdiction of the Magistrates’ Court, which was hearing criminal charges against the plaintiff for resisting authorised officers. The plaintiff sought declarations regarding decisions and rulings in the Magistrates’ Court hearing, arguing that the charges contained a jurisdictional fact, and thus the charge sheet was a nullity. Additionally, the plaintiff sought discovery and production of documents. The defendants applied for a stay of the proceeding, citing the fragmentation of the hearing of the criminal charges, and a temporary stay was granted under the Court Security Act 1980. The legal issues before the court included whether the court had jurisdiction to make the sought declarations, the validity of the charge sheet, and the admissibility of newly discovered evidence in the context of reopening applications.

The court examined whether the charges contained a jurisdictional fact, ultimately concluding that they did not. The court found that the charge sheet was not a nullity and that the declarations sought by the plaintiff were not appropriate in the circumstances. Additionally, the court held that the plaintiff's application for discovery and production of documents was not warranted. Regarding the reopening applications, the court dismissed them, finding no new evidence or misapprehension of fact or law that would justify reopening the proceedings.

Consequently, the application for declaratory orders was dismissed, and the reopening applications were also dismissed. The temporary stay granted under the Court Security Act 1980 remained in effect pending the resolution of the criminal charges against the plaintiff. The court's decision clarified the jurisdictional boundaries and procedural matters surrounding the plaintiff's application and the defendants' stay application.

Orders