Kunc v Victoria Police (No 1)
[2025] VSC 299
•29 May 2025
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
COMMON LAW DIVISION
JUDICIAL REVIEW AND APPEALS LIST
S ECI 2024 02897
BETWEEN:
| LESZEK KUNC | Plaintiff |
| v | |
| MICHAEL BURTON (VICTORIA POLICE) & ANOR (according to the attached Schedule) | Defendants |
S ECI 2024 02900
BETWEEN:
| LIDIA KUNC | Plaintiff |
| v | |
| TROY BEAMES (VICTORIA POLICE) & ANOR (according to the attached Schedule) | Defendants |
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JUDGE: | Irving AsJ |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 11 February 2025 |
DATE OF JUDGMENT: | 29 May 2025 |
CASE MAY BE CITED AS: | Kunc v Victoria Police (No 1) |
MEDIUM NEUTRAL CITATION: | [2025] VSC 299 |
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JUDICIAL REVIEW — Order 56 of the Supreme Court (General Civil Procedure) Rules 2015 (Vic) — Extension of time within which to commence proceeding — No special circumstances made out — Application dismissed.
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APPEARANCES: | Counsel | Solicitors |
| The Plaintiffs in person | ||
| For the First Defendant | Ms A French of counsel | Director of Public Prosecutions |
TABLE OF CONTENTS
Introduction................................................................................................................................... 1
Material relied upon............................................................................................................ 2
The Court’s duty to assist a self-represented litigant.............................................................. 4
The Court’s judicial review jurisdiction.................................................................................... 6
Principles relevant to an application for an extension of time............................................... 7
The period of the delay................................................................................................................ 8
Reasons for the delay.................................................................................................................... 8
Do the Kuncs’ have arguable cases?......................................................................................... 10
The justice to both parties.......................................................................................................... 19
The public interest in the finality of litigation........................................................................ 19
Conclusion on extension of time............................................................................................... 20
Application for summary judgment........................................................................................ 20
Conclusion.................................................................................................................................... 20
HIS HONOUR:
Introduction
On 31 August 2021 Mr Kunc and his wife, Lidia Kunc went to the Botanic Gardens in Melbourne. At that time the Minister for Health had declared a state of emergency due to the COVID-19 pandemic and the Acting Chief Health Officer had issued a stay at home direction under the Public Health and Wellbeing Act 2008 (Vic). After parking their car the Kuncs were approached by members of Victoria Police and issued with infringement notices because, contrary to the direction, they were more than 5 kilometres from their home. On 1 August 2023 the matter was heard in the Magistrates’ Court of Victoria and the Kuncs were found guilty of failing to comply with a direction and fined $500 with conviction. The Kuncs appealed against their convictions and sentences to the County Court. Their appeal was heard by Judge Maidment on 4 March 2024. Judge Maidment conducted a de novo hearing, found the charges proved and imposed fines of $2,000 with conviction on each of the Kuncs.
Mr Kunc has commenced proceeding S ECI 2024 02897 in this Court in which he seeks judicial review of Judge Maidment’s decision under Order 56 of the Supreme Court (General Civil Procedure) Rules 2015 (Rules). Mr Kunc’s proceeding was commenced twenty-six days after the sixty day time limit set by the Rules for commencing an application for judicial review. He therefore requires leave to bring his proceeding out of time.
Mrs Kunc has commenced proceeding S ECI 2024 02900 in this Court in which she seeks judicial review of Judge Maidment’s decision under Order 56 of the Rules. Mrs Kunc’s proceeding was commenced thirty-three days after the sixty day time limit set by the Rules for commencing an application for judicial review. She therefore requires leave to bring her proceeding out of time.
On 13 November 2024 Victoria Police, being the relevant defendant to Mr Kunc’s proceeding, filed a summons seeking summary judgment with costs. On the same date Victoria Police also filed a summary judgment application in Mrs Kunc’s proceeding.
On 11 February 2025 I heard Mr and Mrs Kuncs’ applications for extensions of time to bring their respective proceedings and Victoria Police’s applications for summary judgment in both proceedings. The hearing proceeded on the basis of affidavits filed by the parties in the respective proceedings. The extension of time applications were supported in each proceeding by affidavits of Mr Kunc affirmed 3 October 2024. These affidavits were identical in substance and will be discussed further below. Similarly the summary judgment applications were supported by the affidavits of Joshua David Kaye affirmed 13 November 2024. While the exhibits to Mr Kaye’s affidavits differed, the substance of the affidavits was largely identical, taking account that one related to Mr Kunc and the other to Mrs Kunc. The submissions of all parties were the same in substance in both proceedings.
This judgment relates to the Kuncs’ applications for extensions of time and the Victoria Police’s applications for summary judgment in both proceedings, ie. S ECI 2024 02897 and S ECI 2024 0900.
I have decided not to grant the Kuncs’ applications for extensions of time because I am not satisfied that they have established special circumstances as required by r 56.02 of the Court’s Rules. Accordingly I will order that the Kuncs’ proceedings be dismissed. Since the Kuncs’ proceedings will be dismissed, there is no need to determine Victoria Police’s application for summary judgment.
I will also make orders lifting the stay made by the Court on 11 September 2024 in both proceedings.
Material relied upon
Mr Kunc relied on:
(a) the originating motion filed 29 May 2024;
(b) the affidavit of Leszek Kunc affirmed 5 June 2024;
(c) the summons filed 3 October 2024;
(d) the affidavit of Leszek Kunc affirmed 3 October 2024; and
(e) written submissions filed 7 February 2025.
Mrs Kunc relied on:
(a) the originating motion filed 5 June 2024;
(b) the affidavit of Lidia Kunc affirmed 5 June 2024;
(c) the summons filed 3 October 2024;
(d) the affidavit of Leszek Kunc affirmed 3 October 2024; and
(e) written submissions filed 7 February 2025.
Victoria Police relied upon:
(a) the summonses filed in both Mr Kunc and Mrs Kunc’s proceedings on 13 November 2024;
(b) the affidavits of Joshua David Kaye affirmed 13 November 2024 (one in each proceeding); and
(c) written submissions filed in both proceedings on 11 December 2024.
Contrary to the usual requirement of the Court, neither Mr nor Mrs Kunc had obtained a copy of the transcript of the County Court hearing on 4 March 2024. Victoria Police had also not obtained a copy of the transcript but did provide the Court with a copy of the recording of the hearing before Judge Maidment in the County Court on 4 March 2024. In fact, as explained in Mr Kaye’s affidavit, County Court staff had failed to turn on the recording equipment at the commencement of the hearing and so only part of the hearing before Judge Maidment was recorded.
Mr Kunc, who at the hearing before me made submissions on behalf of both himself and Mrs Kunc, indicated at the commencement of the hearing that he had been unable to access the recording. I briefly adjourned the hearing to allow the recording to be provided to Mr and Mrs Kunc. After that had been done I asked Mr Kunc whether he sought a further short adjournment to watch the recording. Mr Kunc informed the Court that he did not seek an adjournment to watch the recording because he had a clear recollection of the hearing before Judge Maidment. No party sought to make submissions about the fact that the recording was not of the complete appeal hearing, nor to supplement the record of the hearing with affidavit evidence of what had occurred during the portion of the County Court hearing that was not recorded.
Following the hearing, while this judgment was reserved, Mr Kunc sent an email to my chambers attaching further written submissions. The Court was informed during the course of another hearing involving Mr Kunc and Victoria Police on 6 May 2025 that Victoria Police consented to Mr Kunc filing further his short written submissions dated 15 February 2025 in both proceedings. I have had regard to these submissions in reaching my decisions in these cases.
The Court’s duty to assist a self-represented litigant
In Turner v Norwalk Precast Burial Systems Pty Ltd,[1] the Court of Appeal set out the legal framework governing the obligation of a judge in respect of a self-represented litigant:
[1][2025] VSCA 94, [63]-[67] (per Beach, Kennedy JJA and J Forrest AJA).
Legal framework
When considering the obligations of a judge in respect of a self-represented litigant, the authorities highlight the flexibility of the applicable requirements.
In Trkulja v Markovic (‘Trkulja’),[2] this Court examined a number of authorities, as well as the rationale for a judge’s duty in respect of self-represented litigants, before also highlighting the protean nature of the duty:
[2]Trkulja v Markovic [2015] VSCA 298.
Whatever the rationale for the judge’s duty may be, it is clear that the boundaries of legitimate judicial intervention are flexible and will be influenced by the need to ensure a fair and just trial. It follows that what a judge must do to assist a self-represented litigant depends on the circumstances of the litigant and the nature and complexity of the case. The circumstances of the litigant include his or her age, physical and mental health, level of education, proficiency in the English language, level of intelligence, personality and experience as well as his or her understanding of the case.[3]
[3]Ibid [37] (citations omitted) (Kyrou, Kaye JJA and Ginnane AJA).
The Court further stated:
In determining the proper scope of assistance to be offered to a self-represented litigant, the touchstones are fairness and balance. The assistance may extend to issues concerning substantive legal rights as well as to issues concerning the procedure that will be followed. In some cases, it may be necessary for the judge to identify the issues and the state of the evidence in relation to them so as to enable the self-represented litigant to consider whether he or she wishes to adduce evidence. It is elementary that a judge ought to ensure that the self-represented litigant understands his or her rights so that he or she is not unfairly disadvantaged by being in ignorance of those rights. Notwithstanding this, the judge should refrain from advising a litigant as to how or when he or she should exercise those rights.[4]
[4]Ibid [39] (citations omitted).
The Court also observed that the judge should not become the advocate of the self-represented litigant and must maintain the reality and appearance of judicial neutrality at all times and to all parties.[5]
[5]Ibid [41], citing McWhinney v Melbourne Health (2011) 31 VR 285, 293 [25] (Neave, Redlich and Mandie JJA), quoting Tomasevic v Travaglini (2007) 17 VR 100, 130 [141]–[142] (Bell J).
In 2018, this Court delivered two further decisions where a self-represented litigant complained about a lack of procedural fairness: Roberts v Harkness[6] and Doughty-Cowell v Kyriazis (‘Doughty-Cowell’).[7] In the second of these decisions, that of Doughty-Cowell, the Court helpfully collated the following relevant principles, highlighting the need to avoid ‘practical injustice’:
[6](2018) 57 VR 334.
[7][2018] VSCA 216.
(1)Fairness is not an abstract concept. When one talks in terms of procedural fairness or natural justice, the concern of the law is to avoid practical injustice.
(2)The practical question is whether the party in question was given a reasonable opportunity to present his or her case and advance submissions in support, and to know the case to be advanced by the opposing party and to make submissions in opposition to that case.
(3)What is reasonable for this purpose will necessarily depend upon the circumstances. Matters to be taken into account will include:
• the nature and complexity of the issues in dispute;
•the nature and complexity of the submissions which the party wishes to advance;
• the significance to that party of an adverse decision; and
•the competing demands of the time and resources of the Court.
(4)The question to be asked is whether the party (represented or unrepresented) was given a reasonable opportunity to advance his or her own case and to be informed of and respond to the opposing case.
(5)The key difference with respect to unrepresented litigants is the need for the Court to assess the capacity of an unrepresented person to formulate, and articulate, the case which they wish to present. As we said:
The assessment of capability will typically be based on any written documentation which the litigant has filed and, where there is an oral hearing, on the quality of the litigant’s verbal communication with the Court. Very often, the judicial officer will be able to assess relatively quickly whether, and to what extent, the litigant will need assistance, either from the Court or from a third party, in order for the Court to understand the litigant’s case.[8]
[8]Ibid [63] (Maxwell P, Beach and Niall JJA) (citations omitted).
My assessment of Mr Kunc was that, while English was his second language and he had no legal training, he was able to understand the case he wished to make on behalf of himself and his wife and to articulately make that case. Mr Kunc appeared to understand the case that was put against both him and his wife. He was confident and well able to make submissions. He had some understanding of the law relevant to his case but was clearly not legally trained.
The Court’s judicial review jurisdiction
In their respective proceedings, Mr and Mrs Kunc seek to quash the decisions and orders made by the County Court on the basis that Judge Maidment breached the requirements of procedural fairness and was biased.
Judicial review is not an appeal and the Court will not run a rehearing of the proceeding below. The Court in exercising its judicial review jurisdiction will not review the merits (correctness) of the decision below.
The Court’s judicial review jurisdiction is supervisory. It is directed at whether the Court below exceeded its powers in some way or whether the hearing below was procedurally unfair.
Principles relevant to an application for an extension of time
Rule 56.02 provides:
(1)A proceeding under this Order shall be commenced within 60 days after the date when grounds for the grant of the relief or remedy claimed first arose.
(2)Where the relief or remedy claimed is in respect of any judgment, order, conviction, determination or proceeding, the date when the grounds for the grant of the relief or remedy first arose shall be taken to be the date of the judgment, order, conviction, determination or proceeding.
(3)The Court shall not extend the time fixed by paragraph (1) except in special circumstances.
The phrase special circumstances is deliberatively flexible. Whether special circumstances exist is to be determined by reference to the whole of the circumstances of a particular case. The circumstances have to have a particular quality of unusualness, and not be general in character. Something exceeding that which is usual or common is required.[9]
[9]Mann v Medical Practitioners Board (Vic) [2002] VSC 256, [18], (Mann) approved on appeal Mann v Medical Practitioners Board of Victoria (2004) 21 VR 429.
The factors relevant to the exercise of the discretion to extend time include:
(a) the period of the delay;
(b) the reason for the delay;
(c) whether the plaintiff has an arguable case;
(d) the justice to both parties (including any prejudice to either party); and
(e) the public interest in the finality of litigation.
The fact that the plaintiff may be able to demonstrate error below, or other grounds for judicial review, does not automatically result in there being special circumstances. However, if a plaintiff’s grounds are not arguable or have no real prospect of success, there will ordinarily be no point in extending time and therefore no special circumstances exist.[10]
[10]Mann, [19].
The period of the delay
In accordance with r 56.02(2), the date when the grounds for the grant of the relief sought by Mr and Mrs Kunc in their respective proceedings is 4 March 2024, the date Judge Maidment heard the case and convicted the Kuncs.
Mr Kunc commenced proceeding S ECI 2024 02987 in this Court on 29 May 2024. The 60 day time limit in r 56.02(1) expired on 3 May 2024. This represents a delay of 26 days. In the context of a 60 day time limit a delay of 26 days is significant.
Mrs Kunc commenced proceeding S ECI 2024 02900 in this Court on 5 June 2024. The 60 day time limit in r 56.02(1) expired on 3 May 2024. This represents a delay of 33 days. This is also a significant delay.
Reasons for the delay
Mr Kunc’s affidavits, filed in both his and Mrs Kunc’s proceedings, set out the reasons for the delay. In both cases the reasons are identical:
(a) Mr Kunc is not a trained lawyer.
(b) Mr Kunc had been preparing the documents for his judicial review application with his McKenzie friend who is also not a qualified lawyer.
(c) Mr Kunc’s McKenzie friend attempted to file the documents within the 60 day time limit using the Court’s RedCrest electronic filing system but the documents were not accepted for filing because of technical errors.
(d) After a few unsuccessful attempts, on 5 July 2024 Mr Kunc decided to submit the documents himself.
During the course of the hearing Mr Kunc elaborated on these reasons as follows.
Mr Kunc and his McKenzie friend, Mr David Weisinger, started to put Mr and Mrs Kunc’s applications together approximately two weeks before the expiration of the 60 day time limit. Mr Weisinger was responsible for going through the legislation, authorities and the police documents, a process that Mr Kunc said took a long time.
On 2 May 2024 Mr and Mrs Kunc provided their (then) final version of the documents to Mr Weisinger and Mr Weisinger commenced his attempts to file them. On 6 May 2024 Mr Weisinger emailed Mr Kunc to inform him that he had submitted documents for filing but they had been rejected. Mr Kunc understood that at least one reason why the documents were rejected for filing was because they had impermissibly named the State of Victoria as a third defendant. Mr Kunc and Mr Weisinger amended these formal parts of the documents and also made changes to the exhibits to the affidavits in support of the Originating Motions for judicial review.
On 16 May 2024 Mr Weisinger emailed Mr Kunc to say that he had attempted to file the fifth version of the documents on 15 May 2024. After the fifth unsuccessful attempt at filing the documents Mr Kunc made the decision to lodge the documents himself which he did no more than five days later.
On the best information Mr Kunc was able to provide during the course of the hearing, it appears that the first attempt to file the documents commencing both Mr and Mrs Kunc’s proceedings was made by Mr Weisinger on 2 May 2024. It appears that the Court did not accept the documents for filing because of defects in their form. It also appears that the Kuncs, in concert with Mr Weisinger, decided to change or supplement the exhibits to the affidavits that were filed at the same time as the Kuncs’ originating motions. The relevant 60 day time limit expired on 3 May 2024.
I accept that the Kuncs’ first attempted to file their applications on the day before the time limit expired. Mr Kunc submitted the documents were not accepted for filing for technical reasons. That may be the case to the extent that the Kuncs’ originating motions sought to name an incorrect defendant. However, the correction in the name of a party in the documents to be filed is unlikely to have caused the subsequent delays in filing. The decisions by the Kuncs to continue to change the exhibits to their affidavits is a more likely explanation. A decision by a litigant to change the composition of their affidavit is not a technical issue. However, other than the email from the Court to Mr Weisinger dated 2 May 2024 and Mr Kunc’s unclear submissions about the further amendment of the documents after that date, the Court was left with no clear explanation of the technical issues that were said to have stopped the documents being filed earlier.
Leaving to one side the technical issues experienced once Mr Weisinger tried to file the documents, the only explanation Mr Kunc offered for not filing within the time limit was that neither he nor Mr Weisinger are lawyers. I accept that the task of preparing legal documents is generally more onerous for non-lawyers than lawyers. However, many self-represented litigants commence judicial review proceedings in this Court. The fact that none of Mr Kunc, Mrs Kunc or Mr Weisinger is legally trained is not, without more, a special circumstance.
Do the Kuncs’ have arguable cases?
Mr Kunc’s application for judicial review identifies the following questions of law:
(a) Does the Public Health and Wellbeing Act 2008 (Vic) (Act) provide powers to the Authorised Officers or Police Officers to direct (compel) a person to withdraw or override their consent?
(b) Does the Act provide powers to the Authorised Officers or Police Officers to direct (compel) a person to assist the Authorised Officer or Police Officer?
(c) Does s 203(1) of the Act, ‘A person must not refuse or fail to comply with a direction given to the person, or a requirement made of the person, in the exercise of a power under an authorisation given under section 199’ override a person’s free expression and the right to protest?
(d) Does s 203(1) of the Act ‘A person must not refuse or fail to comply with a direction given to the person, or a requirement made of the person, in the exercise of a power under an authorisation given under section 199’, give the Police Officer the powers of detainment or arrest in order to coerce a person into disclosing information that may confirm whether or not an alleged offence has been committed?
Mr Kunc’s application contains, in summary, the following grounds:
(a) the Judge breached the rules of procedural fairness by:
(i) not assisting Mr Kunc, a self-represented litigant and non-lawyer for whom English is a second language, to make an application under s 138 of the Evidence Act 2008 (Vic) to exclude evidence on the basis that it was obtained as a result of police impropriety and/or illegality; and
(ii) allowing the Prosecutor to interfere with the questioning of a witness during cross-examination to change that witness’ evidence.
(b) the Judge was biased.
Mrs Kunc’s application for judicial review identifies in substance the same questions of law and grounds as Mr Kunc’s application.
The references in the Kuncs’ originating motions to the powers of Authorised Officers under the Act and to the changing of evidence requires some further context to be given of the proceeding before Judge Maidment.
Mr and Mrs Kunc say that when they were approached by police on 31 August 2021, the police asked Mr Kunc why he was not wearing a mask. Mr Kunc told the police that he had an exemption, which the police asked to see. In response Mr Kunc asked the policeman whether he was an authorised officer to which the policeman answered, ‘yes’. The policeman did not provide Mr Kunc with any evidence of his authorisation. Mr and Mrs Kunc then ‘under duress’ provided their names and addresses.
In the hearing before Judge Maidment, the Kuncs argued the police did not have a reasonable grounds for stopping and questioning the Kuncs, who were only out smelling the flowers. It followed, the Kuncs argued, that the police had no legal basis for requiring the Kuncs to provide their names and addresses, and so that evidence should have been excluded.
During Mr Kunc’s cross-examination of the police witness Mr Kunc asked questions about whether the witness was an authorised officer at the time of the interaction with the Kuncs on 31 August 2021. The witness stated that he was an authorised officer under sub-delegation from the Chief Commissioner of Police. Mr Kunc asked the witness why he had stopped the Kuncs on that day. The witness said it was because there were stay at home directions in place and under the state of emergency there was also a requirement that everyone wear face masks in public places.
Mr Kunc asked the witness further questions about how he was authorised to carry out enforcement activity under the Act. Judge Maidment then intervened to clarify that the documents before the Court showed there was an original delegation on 29 March 2020 given by Adjunct Clinical Professor Brett Sutton and a further instrument of delegation on 10 January 2021 by Ewan Wallace, Secretary of the Department of Health and Human Services, pursuant to s 19(1) of the Act, to the Chief Commissioner of Police. There was then a sub-delegation, signed by Shane Patton, from the Chief Commissioner to the members of Victoria Police specified by their duties and positions at the time. Mr Kunc indicated he wanted to see the authorisation from Ewan Wallace to Shane Patton.
It was at this point that the prosecutor said that he thought Mr Kunc may be misunderstanding the basis of the witness’ authority. The prosecutor said that the Authorised Officer (under the Act) was Professor Benjamin Cowie, who issued the stay at home direction and that the witness was an authorised person by virtue of his sub-delegation. Mr Kunc then reiterated that at the time of the incident the witness had said to Mr Kunc that he was an authorised officer. Judge Maidment then told Mr Kunc that whether the witness had erroneously identified himself at the time of the incident as an authorised officer (under the Act) was irrelevant and that the relevant question was whether, at the time of the incident, the witness had authority to act as he did.
During the course of the hearing Judge Maidment clarified that Mr Kunc sought to argue that:
(a) the Act permitted the Secretary to appoint any person employed under Pt 3 of the Public Administration Act 2004 (Vic) (Public Administration Act) to be an Authorised Officer;
(b) the provisions of the Public Administration Act excluded police officers from the class of persons who could be appointed as Authorised Officers; and
(c) that the original delegation to the Chief Commissioner was invalid and therefore the Chief Commissioner could not sub-delegate any powers.
After the close of the prosecution case, Judge Maidment asked Mr Kunc whether he wished to lead any evidence in his case. Mr Kunc declined to give evidence from the witness box or to lead evidence from another witness. Later in the hearing Mr Kunc sought to rely on an affidavit he had previously provided to the Court. Judge Maidment declined to allow Mr Kunc to rely on the affidavit because he had earlier elected not to give or lead evidence.
At one point Mr Kunc called for the prosecution to produce the document by which Professor Cowie was appointed an Authorised Officer. The prosecutor did not have that document in Court. Mr Kunc asked for the proceeding to be adjourned so that the prosecution could produce the document. Judge Maidment refused Mr Kunc’s adjournment application on the basis that Mr Kunc had not issued a subpoena for the document prior to the hearing or otherwise alerted the prosecution to his intention to call for that document and because Mr Kunc had not articulated a basis for questioning the validity of Professor Cowie’s appointment.
Mr Kunc then sought to rely on his written submissions. Judge Maidment went through that document with Mr Kunc, clarifying, one by one, the various questions and submissions Mr Kunc raised in his written submissions to ensure he understood the points Mr Kunc wished to raise.
Judge Maidment found the offences proven against the Kuncs. Judge Maidment was satisfied, beyond reasonable doubt that:
(a) the Minister for Health had validly declared a state of emergency on 16 March 2020;
(b) the Chief Health Officer’s request to the Chief Commissioner of Police on 29 March 2020 was validly made;
(c) the Chief Commissioner of Police had the power to sub-delegate his powers under the request made by the Chief Health Officer on 29 March 2020;
(d) there was a series of delegated authorities including the delegation made on 12 January 2021 whereby the Chief Commissioner of Police delegated power to serve an infringement notice under s 209 of the Act, including s 203 of the Act;
(e) the Chief Commissioner’s sub-delegation of those duties, functions and powers which had been delegated to him on 10 January 2021 could be and were lawfully sub-delegated to a class of persons, namely all police officers and all Protective Service Officers;
(f) those powers included serving an infringement notice on any person who committed an offence against s 203 of the Act;
(g) in breach of the direction given by the Acting Chief Health Officer made 26 August 2021, the Kuncs were present in a place more than 5km from their residences;
(h) the uniformed police officers were not required by law to identify themselves beyond giving the Kuncs their names and numbers, which they did;
(i) both Mr and Mrs Kunc refused or failed to comply with the directions given to or requests made of a person in the exercise of a power under the authorisation given by s 199 of the Act;
(j) the arguments raised by the Kuncs had no legal foundation and were not arguments that could validly undermine the legal foundation for the issue of the infringement notices;
(k) the interaction between Mr and Mrs Kunc and the police indicated the Kuncs’ animosity towards the police and a determination by the Kuncs to be as difficult and awkward as they could; and
(l) the Kuncs’ acted in a way intended to provoke the police.
I turn now to the Kuncs’ arguments that the Judge did not afford them procedural fairness and showed bias.
The Kuncs’ amended written submissions identified the following alleged errors of law by Judge Maidment:
(a) Judge Maidment erred in law by ruling that police officers had the same powers as Authorised Officers under the Act (time stamp 14:23 and 47:08);
(b) Judge Maidment erred in law by ruling that police officers who acted as Authorised Officers did not have to have authorisation documents (time stamp 18:08);
(c) Judge Maidment erred in law by not taking into consideration the fact that the Kuncs gave their details under duress to the police officers, who were unlawfully acting as Authorised Officers (time stamp 34:34);
(d) Judge Maidment showed bias when Mr Kunc mentioned the case of George v Rockett (1990) 170 CLR 104 (time stamp 34:58);
(e) Judge Maidment erred in law by not taking into account ss 60-62 of the Biosecurity Act 2015 (Cth) (Biosecurity Act) which Mr Kunc raised in his verbal and written submissions (time stamp 01:15:02);
(f) Judge Maidment erred in law by not taking into account s 117(3) of the Act which Mr Kunc raised in his verbal and written submissions (time stamp 01:15:20);
(g) Judge Maidment erred in law by ruling that s 12 of the Charter of Human Rights and Responsibilities Act 2006 (Vic) (Charter) was suspended, because the Parliament had not made a declaration of suspension (time stamp 01:17:56);
(h) Judge Maidment erred in law in not considering Mr Kunc’s submission about article 1 of the International Covenant on Civil and Political Rights[11] (ICCPR) (time stamp 01:19:40); and
(i) Judge Maidment erred in law in ruling that police officers are entitled to lie and conduct a fishing expedition to obtain evidence (time stamp 01:25:00).
[11]International Covenant on Civil and Political Rights, opened for signature 16 December 1966, 999 UNTS 171 (entered into force 23 March 1976).
It is not apparent from the recording that Mr Kunc attempted to make a formal application to exclude the evidence of the police officer. It is clear that Mr Kunc submitted that the police had no lawful basis to stop and question Mr and Mrs Kunc or to request their names and addresses. This was put on the basis that the police officers did not have the relevant authority under the Act, that the police officers did not have a reasonable suspicion at the time they stopped the Kuncs, and that the Kuncs’ provided their names and addresses under duress.
It is clear from the recording that, in his ruling, the Judge considered the authority of the police at the time the Kuncs were stopped and was satisfied that they did have authority. From his findings about the Kuncs’ provocative behaviour it is also apparent that Judge Maidment did not accept that the Kuncs were acting under duress when they provided their details to police and did not accept that the police were acting beyond their power in stopping and asking the Kuncs for their names and addresses.
During the course of Mr Kunc’s submissions Judge Maidment carefully stepped through Mr Kunc’s submissions regarding the Biosecurity Act, the Charter and the ICCPR. During his ruling Judge Maidment stated that he had considered each of the arguments raised by Mr Kunc, that he had done his best to understand those arguments but was ultimately satisfied that none of those arguments raised valid arguments that would undermine the legal foundation for issuing the infringement notices.
At the time Mr Kunc made his submissions regarding George v Rockett and whether the police had a reasonable suspicion to stop and ask the Kuncs questions, Judge Maidment explained to Mr Kunc that the police had the power to investigate a potential offence and that at the time of the incident the Kuncs were 25km from their home while stay at home directions were in place. It is clear from the recording that Judge Maidment considered Mr Kunc’s arguments on these points and rejected them.
The mere fact that a party was unsuccessful in an argument does not demonstrate that the Judge was biased. The same is the case even if the Judge erroneously dismissed Mr Kunc’s argument.[12]
[12]See Michael Wilson & Partners Ltd v Nicholls (2011) 244 CLR 427, [67] (Gummow ACJ, Hayne, Crennan and Bell JJ).
In relation to the prosecutor’s explanation of the police officer’s evidence, it is true that the prosecutor interrupted Mr Kunc’s cross examination. He did so to explain that Mr Kunc and the police officer appeared to be at cross purposes in relation to the concept of an authorised officer, with Mr Kunc using the term to refer to an Authorised Officer within the meaning of the Act and the police officer referring to authorised officer in the sense that he was a police officer who had been sub-delegated authority to enforce public health directions. If a prosecutor believes the witness may be misunderstanding a question it is permissible for the prosecutor to raise the issue so that the Court can make sure that the person asking the questions and the witness understand what is being asked and answered. In allowing the prosecutor to do so, the Judge did not breach the rules of procedural fairness. Indeed the purpose of the prosecutor’s intervention was to ensure the fairness of the process by ensuring Mr Kunc and the witness understood each other.
Mr Kunc submitted that Judge Maidment showed bias because he did not listen to Mr Kunc’s arguments and only listened to the prosecutor’s arguments. Mr Kunc submitted that the Judge showed bias by not taking into consideration that Mr Kunc proved the police officer ‘lied’ to Mr and Mrs Kunc when he identified himself as an authorised officer. In contrast the Judge accepted the prosecutor’s explanation of the police officer’s evidence, even though the explanation changed the evidence actually given.
Having watched the recording of the hearing before Judge Maidment, I am not satisfied that there is an arguable case that the judge was biased. A significant portion of the hearing was taken up by the Judge carefully going through each point of Mr Kunc’s written submissions with Mr Kunc to ensure that the Judge understood the arguments Mr Kunc wished to make. The arguments sought to be raised by Mr Kunc, particularly about the authority of the police to stop and ask questions of the Kuncs on the day of the incident were addressed in the Judge’s ruling.
It is clear from the questions of law raised by the Kuncs’ originating motions that they seek to reagitate the legal arguments they lost in the County Court. In other words, the Kuncs seek a review of the merits of the County Court decision. That is beyond the scope of a judicial review application in this Court.
It follows that I am not satisfied that Mr and Mrs Kunc have demonstrated that they have arguable cases.
The justice to both parties
If Mr and Mrs Kunc are not granted an extension of time, they will not be able to proceed with their respective judicial review proceedings. I have, however, found that neither Mr Kunc nor Mrs Kunc have an arguable case for the relief they seek.
There is prejudice to Victoria Police in prolonging proceedings which do not raise an arguable case for judicial review.
The public interest in the finality of litigation
In Naik v Monash University,[13] Richards J considered the rationale for imposing statutory limitation periods:
[13][2018] VSC 605, [60]-[61].
…Statutory limitation periods are imposed for good reasons, including the effect of delay on the quality of justice, the oppression involved in litigation of matters long past, the need for certainty and finality and the speedy resolution of disputes.[14] A limitation period involves a judgment about the point where the interests of justice are best served by an end to disputation.
The time limit for judicial review of administrative action is ‘a compromise between the desirability of correcting error or other injustice and the need for finality’.[15] The need for finality:[16]
…reflects the public interest in a manageable system by which disputes, once raised, may be put to rest, and the private interest in avoiding unfair vexation. Finality is closely related to accessibility. Without it, the system would collapse under its own weight.
It is for these reasons that the Court may only extend time to commence a judicial review proceeding in special circumstances. Whether special circumstances exist must be evaluated by reference to the rationales that underpin the time limit and the public interest in the finality of administrative decisions.[17]
[14]Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541 (Brisbane South), 552-553 (McHugh J).
[15]Murray Gleeson, ‘Finality’, (Winter 2013) Bar News: Journal of the New South Wales Bar Association, 35.
[16]Ibid, 41.
[17]Brisbane South, 553 (McHugh J).
Richard J’s observations are equally applicable to the Kuncs’ proceedings.
Conclusion on extension of time
Weighing all of the matters above, I am not satisfied that there are special circumstances that would justify extending time for Mr or Mrs Kunc to commence their respective proceedings.
In the context of judicial review proceedings, the delays of 26 and 33 days by Mr and Mrs Kunc respectively, are significant. While I accept Mr Weisinger first attempted to file the Kuncs’ applications on 2 May 2024, the Kuncs’ have provided no clear and cogent explanation of the technical issues faced in the period from that date until the date the documents were ultimately filed. The delay is not explained by Mr Kunc not being legally represented, nor by the fact that English is his second language. Nor are those matters unusual or uncommon in judicial review proceedings in this Court.
Neither Mr nor Mrs Kuncs’ originating motions raise arguable cases for judicial review. Both the justice to the parties and the public interest in the finality of litigation weigh against granting Mr and Mrs Kunc extensions of time.
Application for summary judgment
As I have not granted the Kuncs an extension of time to commence their proceedings, both proceedings must be dismissed. This means that there is no need to determine Victoria Police’s application for summary judgment. I have, however, considered the submissions of the parties and found that neither Mr Kunc nor Mrs Kunc have an arguable case for the judicial review remedies they seek.
Conclusion
I will make orders dismissing both Mr Kunc and Mrs Kunc’s applications for extensions of time and their respective proceedings, with costs. As both proceedings will be dismissed, I will also make orders lifting the stays made by the Court on 11 September 2024 in both proceedings.
SCHEDULE OF PARTIES
| S ECI 2024 02897 | |
| BETWEEN: | |
| LESZEK KUNC | Plaintiff |
| - v - | |
| MICHAEL BURTON (VICTORIA POLICE) | First Defendant |
| COUNTY COURT OF VICTORIA | Second Defendant |
| S ECI 2024 02900 | |
| BETWEEN: | |
| LIDIA KUNC | Plaintiff |
| - v - | |
| TROY BEAMES (VICTORIA POLICE) | First Defendant |
| COUNTY COURT OF VICTORIA | Second Defendant |
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