Li v Brady
[2025] VCC 693
•4 June 2025
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
APPEALS AND POST SENTENCE APPLICATION LIST
Case No. AP-24-1551
| HANG LI | Appellant |
| v | |
| NICHOLAS BRADY | Respondent |
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JUDGE: | HER HONOUR JUDGE TRAN | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 21 May 2025 | |
DATE OF JUDGMENT: | 4 June 2025 | |
CASE MAY BE CITED AS: | Li v Brady | |
MEDIUM NEUTRAL CITATION: | [2025] VCC 693 | |
REASONS FOR JUDGMENT
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Subject:STATUTE
Catchwords: Appeal from personal safety intervention order – By way of rehearing – Standard of review - Costs
Legislation Cited: Personal Safety Intervention Order Act 2010.
Cases Cited:AAA v County Court of Victoria& Ors [2023] VSC 13; House v King (1936) 55 CLR 499; GLJ v Trustees of Roman Catholic Church for Diocese of Lismore (2023) 414 ALR 635; Fox v Percy (2003) 214 CLR 118; Palmer v Transport Accident Commission [2024] VSCA 254; Juma v Kone Elevators Pty Ltd [2024] VSCA 217; Li v McMullan (Human Rights) [2024] VCAT 784; Tomasevic v Travaglini (2007) 17 VR 100
Judgment: Appeal dismissed
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APPEARANCES: | Counsel | Solicitors |
| For the Appellant | The appellant appeared in person | |
| For the Respondent | Mr D Cash | Dribbin & Brown Criminal Lawyers |
HER HONOUR:
1On 30 October 2024, Magistrate Bazzani made orders:
(a) granting a ten-year personal safety intervention order (“IVO”) against the appellant, Hang Li, in favour of the respondent, Nicholas Brady; and
(b) ordering Mr Li to pay the costs of lawyer, Howard Rapke, for responding to a subpoena to attend and give evidence, fixed in the sum of $1,750.
2Mr Li has appealed to the County Court under s91 of the Personal Safety Intervention Orders Act 2010 (“the PSIO Act”). He contends that the Magistrate erred in:
(a) granting the IVO against him;
(b) setting a ten-year term for that intervention order; and
(c) ordering him to pay the costs of Mr Rapke.
3An appeal under s91 is not a fresh hearing[1] of the original application for an intervention order. The County Court does not have the power to simply substitute the decision that it would have made on the original application for that of the magistrate. Rather, the Court’s role is to determine whether the Magistrate who made the Order on 30 October 2024 made an appealable legal, factual or discretionary error.[2]
[1] Or, to use the Latin phrase, a “hearing de novo”.
[2] AAA v County Court of Victoria& Ors [2023] VSC 13
4In determining whether legal, factual or discretionary error is shown, the Court must bear in mind the applicable standard of review. There are two standards of review which may apply. Where an error in the exercise of discretion is alleged, the applicable standard of review on an appeal by re-hearing is that described in House v The King.[3] Through the PSIO Act; the Civil Procedure Act 2010; and the Magistrates Court Act 1989 (and associated Rules of Court), Parliament has invested a magistrate with the discretion to:
(a) regulate the procedure in their court;
(b) inform themselves as to relevant matters under s47 of the PSIO Act;
(c) make or not make an intervention order under s61 of the PSIO Act;
(d) specify the period for which an intervention order is in force under s77 of the PSIO Act; and
(e) make or not make a costs order under s111(3) of the PSIO Act.
[3] (1936) 55 CLR 499 at 504-5 (“House v King”)
5In relation to any of these matters, a value judgment is involved with more than one legally permissible result.[4] The magistrate is given the power to decide how the power is to be exercised. The value judgements are to be those of the magistrate. The role of an appellate court when reviewing such a discretion is limited to determining whether the discretion was:[5]
(a) made on a wrong principle;
(b) influenced by irrelevant matters;
(c) made without taking into account relevant matters;
(d) based on a mistaken view of the facts; or
(e) plainly incorrect.
[4]See GLJ v Trustees of Roman Catholic Church for Diocese of Lismore (“GLJ”) (2023) 414 ALR 635 at 642, paragraph [16].
[5] To paraphrase House v King at 504-5
6A discretionary decision may be contrasted with an evaluative decision. An evaluative decision is one which is capable of only one legally correct answer. Where an evaluative decision is reviewed, the standard of review applied by an appellate court is the “correctness” standard. The court is required to conduct a “real review” of the evidence and the reasons for decision, subject to the requirement of “making all due allowances for the advantages available to the [magistrate]”.[6] For example, the decision as to whether particular conduct constitutes harassment under s7 of the PSIO Act is an evaluative decision, rather than a discretionary decision. Either conduct is harassment within the meaning of s7 of the PSIO Act or it is not. This does not necessarily mean that the County Court is free to simply substitute its own decision for the decision of the magistrate. The Court is constrained by the need for the appellant to identify a vitiating legal or factual error in the grounds of appeal and the burden which lies on the appellant to establish the existence of the error.[7] It must also recognise the advantages enjoyed by a magistrate who heard the evidence, including oral evidence, in its entirety, over the course of the hearing.[8] Thus, findings based on impressions of credibility and reliability of witnesses should not be interfered with unless glaringly improbable or contrary to probable inferences.[9] This Court should also respectfully acknowledge the depth of experience of magistrates in dealing with applications for intervention orders; and the pragmatic and efficient manner with which those applications must be determined, having regard to the competing demands on the time and resources of the Court. Features of a trial in the County Court, such as written submissions, court books, transcript and reserved judgments are not the norm. The delivery of brief oral reasons should be seen as an indicator of efficient and effective justice, rather than a cause of complaint. Nevertheless, the standard of review for an evaluative decision is one of correctness (i.e.: was the correct answer reached?) rather than the more limited standard of review applied to the exercise of a discretion.
[6]Fox v Percy (2003) 214 CLR 118 at 128, paragraph [29], referred to with approval by the Kiefel CJ, Gageler and Jagot JJ in GLJ at 27.
[7] Palmer v Transport Accident Commission [2024] VSCA 254 (“Palmer”) at paragraph [54]
[8] Palmer at paragraphs [52]-[53]
[9] Juma v Kone Elevators Pty Ltd [2024] VSCA 217 at paragraph [55]
7In the present case, the Court had the benefit of a transcript of the hearing before Magistrate Bazzani on 30 October 2024 and a transcript of Magistrate Bazzani’s oral ruling, and the final intervention order and costs order made the same day. It also had a copy of VCAT orders made 7 March 2023 and a VCAT decision made 19 August 2024, a copy of the interim intervention order made against Mr Li on 18 June 2024, various emails, a LinkedIn message and a police statement signed by Mr Brady. The only witness who gave evidence before the Magistrate was Mr Brady. Mr Brady principally relied upon emails and an attempt to connect via LinkedIn, which occurred between 1 June 2024 and 25 June 2024. There was documentary evidence of each of these instances. This was not a case which depended significantly on judgments of credibility or reliability of witnesses. Accordingly, for an evaluative decision, such as whether there was harassment, the Court is well placed to conduct a real review of the evidence and decide the issue for itself. However, questions of discretion (such as whether, if there was harassment, an IVO should have been granted and what should have been its term) remain to be assessed on the House v King standard described above in paragraph [5].
Identification of grounds of appeal
8Mr Li was self-represented on the appeal to this Court and in the Magistrates’ Court. There is no single document which clearly identifies the grounds of appeal which he relied upon. Rather, his grounds of appeal were contained in three discursive documents which were included in the Court Book:
(a) his initial statement of grounds of appeal;
(b) his submissions for the preliminary hearing in May 2025; and
(c) his updated grounds of appeal in the proceeding AP-24-1551 before the County Court of Victoria, dated 16 May 2025.
9From its review of these documents, the Court identified a number of alleged errors that it appeared Mr Li sought to rely upon. At the oral hearing, Mr Li was given an opportunity to expand on each of these identified alleged errors. Once he had been provided an opportunity to expand on each alleged error, Mr Li was then provided an opportunity to make further submissions and to identify whether the Court had omitted any grounds of appeal on which he wished to rely. At the conclusion of his submissions he stated:
“I feel like I’ve already mentioned everything that I wanted to say and your Honour already walked me through every point I wanted to mention. It is clear. And I really appreciate your Honour for giving me this opportunity because I’m a layman and I don’t understand the law. I really appreciate it.”
10The Court has treated the alleged errors identified in this manner as Mr Li’s grounds of appeal. The remainder of these reasons addresses each of these identified alleged errors in turn. With respect to each ground of appeal, these reasons briefly summarise the submissions made by Mr Li before turning to the Court’s decision on the ground.
Grounds of appeal relating to the grant of IVO
Refusing Mr Li the opportunity to submit evidence
Mr Li’s contentions
11Mr Li contended that the Magistrate’s decision was infected by error because, prior to the hearing, the Magistrates’ Court registry had refused to accept documents that he had tried to file.
Court’s decision on ground of appeal
12The background facts underlying this alleged error appear from the transcript. As explained by Mr Li to Magistrate Bazzani when she was clarifying the documents that she was to consider, Mr Li attempted to email documents that he wished to rely upon to the Magistrates’ Court registrar. He informed the Magistrate that these documents were rejected because orders of the Magistrates’ Court made 29 July 2024 did not allow for him to file any further documents. He explained that he had then complained to the Chief Magistrate. Magistrate Bazzani responded, “I can’t understand why the registry would reject documents”.[10] She continued:
“I do want to know whether this gentleman was refused the ability to provide documents. I actually think that’s important for me to know. What I am going to do is ask you to show me the email that says you’re not allowed to produce documents and also the letter or email to and from Justice Hannan, the chief magistrate. Then, my clerk will give you an email address for you to send those documents. … .”[11]
[10] Transcript (“T”) 46, Lines (“L”) 5-6 at Court Book (“CB”) 52
[11]T47, L5-12 at CB 53
13Ultimately, Magistrate Bazzani obtained copies of all the documents and read them in her lunch hour,[12] at a time when Mr Brady was still giving evidence-in-chief and before Mr Li had cross-examined him.
[12] T56, L5 ꟷ T57, L5 at CB 62-63
14Finally, at the conclusion of the hearing, prior to adjourning to consider her ruling, the following exchange occurred between the Magistrate and Mr Li:
“HER HONOUR:
All right. That’s the case. Now, Mr Li, what do you wish to do? Do you wish to call any witnesses or - and do you wish to give evidence?
MR LI:
(Direct) I believe I - I submit all the evidence.
HER HONOUR:
All right.
MR LI:
Exhibit - I got exhibit - my exhibit.
HER HONOUR:
Thank you.
MR LI:
In my personal ---”[13]
[13]T91, L1-8 at CB 97
15The Magistrate then stated:
“Could I just say, for what it’s worth, I take the view that you should have been allowed to submit those documents. You were told that the court would not accept them. I believe that was wrong. I believe you should have been allowed to submit those documents. For the relevance of today I’m telling you that I accept those documents from you and I read those documents that were provided over lunch as I did your documents, Mr Smurthwaite, that is Mr Brady’s further and better particulars. I have that material. … .”[14]
[14]T91, L9-18 at CB 97
16Mr Li’s appeal is against the order of Magistrate Bazzani made on 30 October 2024. It is not an appeal from earlier decisions of the Magistrates’ Court registry. Whether or not the earlier decision to reject the documents which Mr Li sought to file was incorrect, it is apparent from the above review of the transcript that Magistrate Bazzani was committed to ensuring that Mr Li had a fair opportunity to present his case to the Court. This included her investigating the previous refusal to accept documents which Mr Li sought to file, obtaining copies of those documents and reading and considering them over her lunchbreak.
17If there was an error in the registry previously rejecting documents, it was neither sanctioned, nor perpetuated by Magistrate Bazzani. To the contrary, she positively repudiated it.
18No error is established in the Order of 30 October 2024 because of any decision by the Magistrates’ Court registry to reject documents sought to be filed by Mr Li.
Not permitting Mr Li to cross-examine and make submissions intended by him to establish that Mr Brady had not complied with Federal law and that therefore Mr Li’s actions were no more than the lawful complaint of a whistleblower
Mr Li’s contentions
19Mr Li also contended that the Magistrate refused to permit him to cross-examine on the question of whether Mr Brady’s conduct was contrary to Federal law. He contended that Mr Brady’s conduct did not comply with Federal law and that he had a right as a whistleblower to raise this problem and had followed the laws to make his complaint, and had abided by the regulations of all authorities. He contended that the Magistrate had breached his right of procedural fairness.
Court’s decision on ground of appeal
20I have read and considered the transcript of the entirety of Mr Brady’s cross-examination. During the course of Mr Li’s cross-examination of Mr Brady, he asks Mr Brady “in case StarTrack deliberately manipulate - delete some part of this report without your awareness, do you think I have reasonable - reasonable ground to report this … against the Commonwealth Government”.[15] After Mr Brady answers this question, Magistrate Bazzani is recorded as stating:
[15]T77, L6-10 at CB 83
“HER HONOUR:
Mr Li, can I interrupt you, sir? Because I want you to make the best use of cross-examination.
MR LI:
Yeah.
HER HONOUR:
This application is about harassment.
MR LI:
Yeah.
HER HONOUR:
This application is for an intervention order against you because of harassment.
MR LI:
Yeah.
HER HONOUR:
Whatever happened in the past with the inspector’s report, with whatever Mr Brady did or Ms Sdrinis did isn’t relevant. What is relevant for me to know is whether you harassed this man.
MR LI:
Okay.
HER HONOUR:
And if you did harass him, if you sent lots of emails, nasty messages, tried to get into his LinkedIn, all of those are contained with the definition of harassment. That’s what you need to focus on. The Fair Work Commission, the rulings, the recommendations are irrelevant.”[16]
[16]T77, L24 ꟷ T78, L11 at CB 83
21The transcript, after this point in time, reads more like a discussion between the Magistrate and Mr Li than cross-examination. There are some questions by Mr Li which Mr Brady answers. However, it mostly consists of exchanges between Mr Li and the Magistrate, in which Mr Li volunteers information about events and the Magistrate asks him questions in relation to that information.
22It is apparent from this exchange that Mr Li sought to contend that he had not engaged in “harassment” within the meaning of s7 of the PSIO Act, as his conduct in contacting Mr Brady was a reasonable attempt to make Mr Brady “comply with law” and respond to the subpoena issued against him in the Federal Circuit and Family Court of Australia, or to respond to his allegations that Mr Li’s former employer, StarTrack, had altered a Comcare report relied upon in the Federal Circuit and Family Court of Australia proceedings.
23It was also apparent the Magistrate understood this was Mr Li’s contention. Ultimately, the Magistrate explains her view as to the prospects of success of such a submission to Mr Li clearly:
“HER HONOUR:
He’s under the impression that despite being told repeatedly not to contact him, you persisted and - - -
MR LI:
Is that reasonable, that’s the reason I keep asking him.
HER HONOUR:
Well, of course it’s not reasonable, Mr Li. How could you think it’s reasonable to keep contacting a man who you are complaining of in the context of his previous job where he’s not even with that job or in that role anymore.”[17]
[17]T87, L22-30 at CB 93
24After some further discussion, the Magistrate then states:
“All right. Can we now focus – I’ll give you another five minutes to ask questions. Can you focus upon this application and any questions you have for this witness about it?”[18]
[18] T88, L19-22 at CB 94
25It is not unusual for self-represented litigants to struggle to clearly separate their own evidence or submissions from questions to be asked of a witness in cross-examination. It is apparent from the transcript of the hearing there were times where, in response, the Magistrate engaged in a dialogue with Mr Li in relation to how he puts his case. There were also times where the Magistrate expressed forthright views in relation to the contentions Mr Li was seeking to raise. Having done so, she then placed a time limit on the length of further cross-examination by Mr Li. Ultimately, she did not enforce this time limit, stating:
“HER HONOUR:
Do you have any more questions about this intervention order?
MR LI:
I don’t have.”[19]
[19]T89, L16-18 at CB 95
26This transcript needs to be read in the context of a busy Magistrates’ Court courtroom; Mr Li’s self-represented status; and the Magistrate’s discretion under s47 of the PSIO Act to inform herself as she saw fit, despite any rules of evidence to the contrary. It is apparent from the transcript that Magistrate Bazzani was endeavouring to understand the factual matrix and how Mr Li put his case; and to give him assistance in understanding what she considered to be helpful to her decision, while endeavouring to restrict the amount of time spent on matters which she did not consider to be helpful. It was within her discretion to govern the procedure of her courtroom in this manner. There is no appealable error in this approach.
Concluding that Mr Li’s actions amounted to harassment when it was reasonable for him to press Comcare to comply with Federal law or to be concerned that Mr Brady had left Victoria
Mr Li’s contentions
27Mr Li contended that his actions were reasonable attempts to:
(a) press Comcare to comply with Federal law; or
(b) due to his concern that Mr Brady had left Victoria and that this might mean VCAT did not have jurisdiction to determine his proceeding.
28He also contended that the Magistrate was mistaken or misled into believing that he knew Mr Brady’s work address or phone number.
Court’s decision on ground of appeal
29Whether or not Mr Li’s actions amounted to harassment is an evaluative decision, rather than a discretionary one. This Court must therefore determine whether the Magistrate’s decision that there was harassment was correct, subject only to the deference due to the Magistrate given the particular advantages available to her.
30Stated as an abstract proposition, it may be reasonable for a person to press a Commonwealth agency to comply with the law. However, the Magistrate was not required to decide the reasonableness such a proposition in the abstract. The evidence before her was that:
(a) Comcare received a complaint from Mr Li about his employer, StarTrack, in March 2021;[20]
[20] T51, L7 ꟷ T52, L5 at CB 51-52
(b) Mr Brady emailed Mr Li, informing him of the outcome of Comcare’s investigation on 15 June 2021;[21]
[21] CB 156
(c) in November 2022, Mr Li commenced VCAT proceedings against a number of respondents, including Mr Brady;[22]
[22] T61, L11-12 at CB 67
(d) on 7 March 2023, VCAT made an order directing Mr Li not to email the parties personally and instead to serve any documents by email to their authorised representative;[23]
[23] CB 160
(e) Mr Brady left Comcare in February 2024 and moved to the Aged Care Quality and Safety Commission;
(f) on 1 June 2024,[24] Mr Li sent an email expressly addressed to the shadow Attorney-General and the Commissioner of the National Anti-Corruption Commission (“NACC”), but copied to email addresses which included the chambers of a NSW Supreme Court judge, the Australian Institute of Criminology, the Corruption and Crime Commission of WA, the SA Independent Commission against Corruption and the Queensland Corruption and Crime Commission. The email was also sent to the Aged Care Quality and Safety Commission (Mr Brady’s employer).[25] In that email, after alleging that Mr Brady had refused to comply with his subpoena which led to his case being dismissed, he states:
[24] CB 197-200
[25] T65, L23-27 at CB 71
“From my perspective, the actions of Mr Brady at Comcare alone have already tarnished the reputation of the Commonwealth government and badly dented the public trust in the administration of justice. … .”;[26]
[26]CB 199-200
(g) on 5 June 2024, Mr Li attempted to connect with Mr Brady on his LinkedIn account using the pseudonym “giveup Never” and a photo of a woman;[27]
[27] CB 209
(h) on 7 June 2024, Mr Li sent an email expressly addressed to the Minister for Health and Aged Care, but to email addresses which included the Aged Care Quality and Safety Commission, VCAT, the Federal Court, a senator, the Liberal Party of Australia and The Sydney Morning Herald newspaper. In that email he said:
“… I am reaching out to you and the Aged Care Quality and Safety Commission for the purpose of securing the means of subpoenaing Mr Nichloas (sic) Brady, a former Comcare senior Director and current Director Operations with Serious Incident Response Assessment of the Commission.
…
… In August 2023, I subpoenaed Mr Brady to testify for me. However, Mr Brady refused to come to the court. My case was dismissed by the court in May 2024.
As a Comcare officer, Mr Brady failed to perform his duties faithfully, I believe that is the reason why Comcare closed its Melbourne Office and could not let him lead the team anymore.
However, Mr Brady is currently still a key respondent in a Human Rights case in the Victorian Civil & Administrative Tribunal (H381/20220). I understand he might move to Sydney now and I will need the contact information from the Aged Care Quality and Safety Commission in order to send a subpoena or summon Mr Brady for the next proceedings.”[28]
[28]CB 201-202
(i) on 11 June 2024, Holding Redlich (who were representing Mr Brady in VCAT) wrote to Mr Li and reminded him that the VCAT Orders required him to refrain from contact Mr Brady directly;[29]
[29] CB 212
(j) on 18 June 2024, an interim intervention order was granted against Mr Li. That order prohibited him from publishing on the internet, by email or other electronic communication, any material about Mr Brady and prohibited him from contacting or communicating with Mr Brady by any means; and
(k) on 23 June 2024, Mr Li sent an email expressly addressed to the Chief Justice of the Federal Circuit and Family Court of Australia, which included the CEO of the Aged Care and Quality Commission, the Commonwealth Attorney General, the Federal Judicial Commission, the Judicial Commission of Victoria, the Commonwealth Health Department and the National Anti-Corruption Commission. In the email he said:
“However, Mr Nick Brady remains one of the key respondents in my human rights case in the VCAT (H381/2022). Before joining the Aged Care Quality and Safety Commission, Mr Brady was represented by Holding Redlich lawyers who worked for Comcare. After knowing Mr Brady changed his employer, I took the initiative and contacted the Aged Care Quality and Safety Commission and The Department of Health and Aged Care, hoping its legal team would take over the VCAT case from Holding Redlich lawyers.
To my surprise, I received an application and summons for an intervention order on June 20, 2024. Mr Nick Brady believes that I have spread defamatory remarks about his behaviour in relation to my lawsuit in the Federal Circuit Court and he is filing an application for an intervention order in the magistrates’ Court of Victoria (Please refer to the attached documents). On July 29, 2024, I am required to attend a hearing in the Magistrates’ Court of Victoria.
I viewed Mr Brady’s move in the Magistrates’ Court of Victoria as a blatant attempt to stop me from pursuing my Human rights case in the VCAT because I am a self-represented applicant. Since the best defences in the defamation charges are truth and honest opinion, I am reaching out to the Federal Circuit Court for evidence that can prove that I was stating facts relating to the following events in the court’s proceedings.”[30]
[30]CB 220-221
(l) on 25 June 2024, Mr Li sent an email expressly addressed to the Minister for Communications, but sent to email addresses that included the CEO of the Aged Care Quality and Safety Commission, the Attorney-General, a member of Parliament, Australia Post, the Magistrates’ Court, VCAT, The Age newspaper and The Australian newspaper. In the email he said:
“… In August 2023, I sent my subpoena to Mr Nick Brady, Comcare Victoria/Tasmania regional director and expected him to testify in the court about the concealment and misrepresentation of Comcare Inspectors’ report (MC00021105) by Australia Post Group before the court.
However, Mr Nick Brady refused to come to the court and testify, which led to my case being dismissed. Following the trial, I reported the corruption actions of Mr Brady to the PM office. As a result, Mr Brady was removed from his position at Comcare and he started his new job at the Aged Care Quality and Safety Commission. There is still a human rights case against Australia Post in VCAT (H381-2022) and Mr. Brady is one of the key respondents. In order to stop me from pursuing this human rights case, Mr. Brady went to the Magistrates’ Court of Victoria and claimed that I spread defamatory remarks on his actions in the Federal Circuit Court which cost him job in 2023. Based upon these defamation charges, Mr Brady also applied for an intervention order to stop me from contacting him. The court hearing date is on July 29, 2024.
The best defense to the defamation charges is to prove I have been telling the truth about his refusal to comply with my subpoena in the Federal Circuit Court in 2023.
At the time, Ms Alison Freeman travelled from Sydney to Melbourne and coordinated the litigation work for Australia Post in the courtroom throughout the trial. In order words, Ms Freeman is a witness to the controversial events which involved Mr Nick Brady.
As an eyewitness, Ms Freeman can verify the following facts:
On August 3/4, 2023, during the mention, Mr Nick Brady did not show up in the courtroom as required. When Judge Catherine Symons assessed my subpoena for Mr Brady, Ashurst lawyer Mr Daneil Fawcett, who acted for Australia Post, raised objections to my subpoena in the capacity of Mr Brady even though Mr Brady was not represented by Ashurst lawyers.”[31]
[31]CB 224-224
31These emails went well beyond what could be viewed as reasonable behaviour to press a Commonwealth agency to comply with the law, particularly considering Mr Brady was no longer employed by Comcare at the time. During the hearing, Mr Li sought to draw an analogy between his conduct and a “drug trafficking criminal” being chased and harassed by the Federal Police. But Mr Li is not the Federal Police, and his conduct had no resemblance to a police investigation.
32The emails make specific allegations of breach of duty and “refusal” to comply with a subpoena against Mr Brady. The 25 June 2024 email goes so far as to describe “corruption actions” of Mr Brady and Mr Brady being “removed from his position at Comcare”. The recipient list, including Mr Brady’s employer; a number of Commonwealth Ministers, including the Minister responsible for health and aged care; and journalists, is calculated to cause damage to Mr Brady’s reputation. In addition, in the same period, Mr Li directly sought to contact Mr Brady by attempting to connect with him over LinkedIn with the username “giveup Never”. All of this came in a context of repeated earlier contacts and a VCAT order requiring him not to attempt to contact Mr Brady directly.
33The mere fact Mr Li had an unfounded suspicion Mr Brady had left Victoria did not justify the communications. Mr Li had been clearly directed to only communicate with Mr Brady’s authorised representatives in relation to the VCAT proceeding. It was not Mr Li’s role to attempt to orchestrate new lawyers to represent Mr Brady in that proceeding. There was no evidence that Mr Brady asserted VCAT lacked jurisdiction over him, or was no longer represented in the VCAT proceeding by Holding Redlich.
34There is also no evidence the Magistrate made her ruling based on a mistaken belief that Mr Li knew Mr Brady’s work or home address, or phone number.[32] To the contrary, the Magistrate did not accept it was reasonable to continue to pursue Mr Brady through his new employer for the purpose of seeking to ascertain a means for contacting Mr Brady otherwise than through his existing lawyers, or to attempt to involve himself in who ought to be appointed to act as Mr Brady’s lawyer.
[32]See further below paragraph [72]
35Under s7 of the PSIO Act, harassment is defined to mean a course of conduct towards another person that is “demeaning, derogatory or intimidating”. It includes conduct carried on by or through a third person. The emails and LinkedIn contact described above constitutes a “course of conduct” for the purposes of s7. Although the emails were not sent directly to Mr Brady, they were sent to his employer and others. This is conduct carried on, by, or through a third person within the meaning of s7. Mr Li’s course of conduct also included his attempt to connect directly with Mr Brady on LinkedIn using the user-name “giveup Never”. The emails contained material which was demeaning or derogatory about Mr Brady. Further, the sending of emails to numerous email addresses, including Mr Brady’s employer, various minister’s and newspapers was calculated to intimidate Mr Brady. One could ask how it is that Mr Li thought his conduct would assist his stated aim of getting Comcare or Mr Brady to comply with the law? The most likely answer would seem to be that he hoped that emailing negative statements about Mr Brady to as many powerful people as possible would pressure Mr Brady into behaving in the manner which Mr Li desired. That is harassment.
36The Magistrate’s decision that Mr Li had engaged in harassment of Mr Brady was correct. There is no error in her decision.
Relying on the VCAT decision
Mr Li’s contentions
37Mr Li contended the Magistrate erred in relying on a decision made by VCAT dismissing his claim against Mr Brady. He said the Magistrate was at a different level of authority to VCAT and should have exercised her own discretion. He also stated that he did not agree with the VCAT decision, that it had overlooked a fact, and it was not valid.
Court’s decision on ground of appeal
38In her ruling, Magistrate Bazzani stated that she has “had particular regard to the decision of Senior Member Steele from the Victoria Civil and Administrative Tribunal”[33] and that, in that decision, Mr Li is described as having had “no prospect of success” and that his claims were “held to be misguided, lacking substance”, and that the “same applies in this case”.[34]
[33] T92, L29 – T93, L1 at CB 98-99
[34] T93, L31 ꟷ T94, L3 at CB 99-100
39Mr Li submitted that the VCAT proceeding had been dismissed solely on the grounds of jurisdiction. It is correct that at paragraph 173 of the VCAT ruling,[35] the Tribunal member accepts a submission made by Mr Brady and Ms Sdrinis that VCAT does not have jurisdiction under the Work Health and Safety Act 2011 (Cth). However, the Tribunal member goes on to conclude that Mr Brady had not assisted the alleged discrimination as claimed and had not victimised Mr Li in contravention of s103 of the Equal Opportunity Act 2010. He had also earlier concluded that the claim Mr Brady was “involved in or responsible for any redaction of or changes to the Comcare Inspector Report dated 14 July 2021” is “misguided and lacking in substance”.[36] He ultimately concluded that the claims against Mr Brady “are misguided, seek to import a jurisdiction that VCAT does not have, and lack substance”.[37] He summarily dismissed Mr Li’s claims against Mr Brady.
[35]Li v McMullan (Human Rights) [2024] VCAT 784 (“VCAT ruling”) at CB 192
[36]VCAT ruling at CB 189, paragraph [152]
[37]VCAT ruling at CB 195, paragraph [199]
40Of course, the fact that a party has been unsuccessful in one case says nothing, in and of itself, about whether they should be unsuccessful in another entirely different case. The VCAT proceeding required the application of entirely different statutory provisions to the PSIO Act and the Tribunal member followed a different path of reasoning to that required of the Magistrate. It would be an error for the Magistrate to assume that, because VCAT had summarily dismissed a claim by Mr Li, she should grant an intervention order against him. But I do not take the Magistrate to have been making such a basic error when she said, “[t]he same applies in this case”. Rather, she was using shorthand to explain why Mr Li’s contention that his actions were reasonable because he was seeking redress for some breach of duty committed by Mr Brady were misguided and lacking in substance.
41During the hearing, the Magistrate did at one point make an error in relation to the timing of the VCAT ruling, assuming it had occurred prior to the email correspondence which commenced in June 2024. However, this was immediately corrected by Mr Li. His correction was accepted by the Magistrate and it is apparent that this error did not affect her decision.[38] Indeed, if anything, it demonstrates the open and fair nature of the hearing she was conducting, being willing to hear and accept a correction on a factual matter from Mr Li.
[38] See T82, L26-T83, L11 at CB 82-3
42In a context where the Magistrate was permitted, under s47, to inform herself as she thought fit despite any rules of evidence to the contrary, I see no error in the Magistrate relying upon the VCAT ruling in the way she did. In any event, even if arguably some breach of Federal law had been committed by Mr Li’s employer (or even Mr Brady), it would not justify Mr Li’s course of conduct set out in the previous section. As the Magistrate, herself, pointed out to Mr Li “[y]ou can’t replace bullying behaviour with bullying behaviour”.[39] Nor is “they deserved it” a satisfactory answer to an application for an intervention order where harassment (or any other prohibited behaviour under the PSIO Act) is established. As I have determined that the Magistrate was correct to find Mr Li had committed harassment within the meaning of s7 of the PSIO Act, there is no appealable error in her decision.
Not requiring Louise Close and Jeanette Sdrinis to give evidence
[39]T78, L16-17 at CB 84
Mr Li’s contentions
43Mr Li submitted that the Magistrate should have required Louise Close (head of Comcare legal) and Jeanette Sdrinis (the author of the Comcare report of the original investigation into Mr Li’s complaint to Comcare) to give evidence. He said the purpose of Ms Sdrinis giving evidence was so he could ask her during cross-examination if his employer had engaged in any illegal modification of the Comcare report. He contended he thought she would be called to give evidence.
Court’s decision on ground of appeal
44The short answer to this alleged error is that Mr Li did not tell the Magistrate he wished Ms Close and Ms Sdrinis to give evidence. Indeed, at the conclusion of the hearing, when asked if he wished to call any witnesses or wished to give evidence, he responded “I submit all the evidence”.[40]
[40] T91, L4 at CB 97
45The longer answer is that the evidence Mr Li contended these two witnesses could give related to whether his former employer, StarTrack, modified Comcare’s report when relying upon it in the Federal Circuit and Family Court of Australia. As he explained it, he wanted Ms Sdrinis to give evidence as to whether it was illegal for his employer to erase his signature and whether it was harassment to complain. As to the first point, it concerns the conduct of his former employer, not Mr Brady. And, in any event, as I have held above, whether, arguably, Mr Brady might have committed some breach of duty, does not justify the course of conduct which Mr Li engaged in. As to the second point, the question of whether his conduct amounted to harassment was not a matter for the opinion of a witness.
Relying upon conduct after June 2024
Mr Li’s contentions
46Mr Li contended he was taken by surprise by Mr Brady’s reliance upon his conduct on and from June 2024.
Court’s decision on ground of appeal
47Mr Brady’s initial application for an intervention order referred to Mr Li’s conduct in contacting his employer. Mr Li’s conduct after June 2024 was raised in Mr Brady’s further and better particulars dated 28 August 2024. Mr Li was informed at the outset of the hearing before Magistrate Bazzani that reliance would be placed on his conduct on and from June 2024, indeed, this is the reason he was referred for legal advice in relation to the privilege against self-incrimination.
48This ground does not raise an appealable error.
Not providing him with the assistance he required as a self-represented litigant
Mr Li’s contentions
49Mr Li relied upon the decision of Tomasevic v Travaglini,[41] in which Bell J stated:
“As part of their overriding obligation to ensure a fair trial, trial judges have a positive duty to give proper assistance to self-represented litigants, both in criminal and civil trials and also in interlocutory proceedings, such as in applications to strike out pleadings. The same duty applies to masters, magistrates, commissions and tribunals, but of course the application of the duty would have to take into account the particular demands of those jurisdictions. The duty applies even when all the parties are litigants in person. … .”[42]
[41] (2007) 17 VR 100 at 119 (“Tomasevic”)
[42]Tomasevic at paragraph [89]
Court’s decision on ground of appeal
50I accept that a magistrate, and a County Court judge, have a duty to ensure that a trial is fair. In the case of a self-represented litigant, this may require adjustments to court procedure. It may require an explanation to be given of both substantive and procedural rights. It may require some assistance to be given to the litigant to identify the grounds and evidence that they wish to rely upon. But it does not require advice to be given about how a litigant should exercise their rights. Further, the duty to ensure that a trial is fair for a self-represented litigant does not extend to conduct which makes the trial unfair for a represented litigant.
51In the present case, the Magistrate was at pains to ensure that Mr Li had access to legal advice in relation to self-incrimination, and to explain to him what was in issue in the hearing and to ensure he understood her views as to the relevance of the evidence he was seeking to lead. This ground does not raise any appealable error.
Failing to provide a NAATI-accredited interpreter
Mr Li’s contentions
52Mr Li contended that the interpreter provided to him at the Magistrates’ Court hearing was not a NAATI-accredited interpreter. He claimed that because English was not his native language, he became emotional when he tried to speak in English, and he said that this resulted in a verbal argument which led to the imposition of the IVO.
Court’s decision on ground of appeal
53Throughout the hearing, the Magistrate was concerned to ensure that Mr Li had a genuine opportunity to use the services of an interpreter. She commenced with asking the interpreter to explain to Mr Li that he may use the interpreter or, if he preferred, he did not have to.[43] On many occasions, she reminded those present to allow the interpreter time to interpret.[44] On one occasion, she reminded Mr Li (who had begun talking in English) that if he needed to use the interpreter at any time he could.[45]
[43] T5, L29-31 at CB 11,
[44]See, for example, T17, L26 at CB 23; T19, L15 at CB 25; T20, L1 at CB 26; T22, L23 at CB 28; T42, L29-31 at CB 48
[45] T76, L17-18 at CB 79
54I note Mr Li was assisted by an interpreter, Ms Shu-Ching Yu, at the appeal hearing. Ms Yu was NAATI Level-3 accredited and was plainly an exceptional and committed interpreter, able to provide real-time interpretation. Even so, Mr Li elected on a number of occasions to speak English without the aid of an interpreter and demonstrated good English language skills when he did.
55Even if the interpreter at the Magistrates’ Court hearing was not NAATI accredited, there is no evidence that it deprived Mr Li of the ability to adequately present his case. Nor do I accept there is any basis for a contention that the reason the IVO was made against him was because he became emotional.
56This ground provides no appealable error.
Granting an intervention order inconsistent with Federal law
Mr Li’s contentions
57Mr Li contended that the Magistrate made a decision which was against the Workplace Health and Safety Act. He contended that his employer had modified a Comcare report contrary to that Act, and this was against Federal law and a fraud. He stated that disclosing this to the public was not harassment and that the magistrate had therefore made a decision against Federal law.
Court’s decision on ground of appeal
58No appealable error is established:
(a) it was not a submission made to the Magistrate; and
(b) even if his former employer had breached the Workplace Health and Safety Act, this would not render the grant of an intervention order to protect a former Comcare employee inconsistent with the Workplace Health and Safety Act.
Allegations of bad faith by the Magistrate
Mr Li’s contentions
59At various points during his submissions, Mr Li made accusations of the Magistrate “intentionally” suppressing facts, or preventing documents being served, or “bullying” him, or giving him a “hard time intentionally”, of “suppressing” subpoenas, or saying “she had no idea”, when in fact she did not want to provide information.
60Finally, he stated that the Magistrate had called “police officers” to have him taken to the registry and these police officers had told him to leave the building right away, and that if he remained he may cause trouble. He contended this was judicial bullying and a deprivation of his rights to understand how to lodge an appeal.
Court’s decision on ground of appeal
61Allegations of bad faith should not be made merely based on a “feeling” or “belief”. Allegations of this nature are very serious and require detailed and specific evidence. No such evidence was before the Court. There is absolutely no basis for any contention that the Magistrate committed any intentional wrongdoing, bullying, suppression of facts, or other form of misconduct or bad faith. The allegations should not have been made by Mr Li and are rejected.
62To the contrary, the transcript reveals a magistrate who was at pains to ensure Mr Li had a fair hearing, was provided with access to an interpreter, was provided with access to legal advice in relation to self-incrimination and had an opportunity to submit documents on which he sought to rely.
63It was also incorrect to say that she set aside subpoenaed evidence from the NACC and Australian Federal Police (“AFP”). To the contrary, she accepted a document produced by the AFP and provided it to Mr Li. She read out a letter from the NACC stating it had no documents to produce in response to the subpoena.
64As to his removal from the court by “police officers” (likely court security or possibly PSOs), the security of the building is ultimately a matter for the Magistrates’ Court and Court Services Victoria, and requires an assessment of many complex factors, including the safety of staff and other members of the public. Even if he were required to leave the building after the Magistrate made her order, as suggested, this does not amount to a deprivation of his access to justice, nor is it something which would provide a basis for setting aside the Magistrate’s Order. Further, despite complaining that he was denied information about how to lodge an appeal, in fact he was ultimately able to access that information and lodge an appeal.
65The allegations of bad faith made by Mr Li against the Magistrate do not raise any appealable error.
Granting an intervention order which was sought for the purpose of preventing Mr Li continuing with his VCAT case
Mr Li’s contentions
66Mr Li contended that the purpose of the IVO was to prevent Mr Li continuing with his VCAT case and it was therefore an abuse of process.
Court’s decision on ground of appeal
67There is no evidence Mr Brady sought the IVO to prevent Mr Li continuing with his VCAT case. Mr Li remained able to progress that case through his lawyers. The VCAT case was dismissed prior to the IVO being granted on 30 October 2024.
68This ground does not raise an appealable error.
Imposing a ten-year term for the IVO
Mr Li’s contentions
69Mr Li contended that a period of ten years did not reflect the nature of the matter, because he had not caused physical harm to Mr Brady and the application had been launched merely because he bypassed a lawyer and sought to contact Mr Brady directly. He said that a ten-year term should only be applicable when there is a serious tendency that a protected person can be harmed. He contended there was no such risk in the present case, particularly given he did not have the residential address of Mr Brady or his phone number.
Court’s decision on ground of appeal
70The length of an intervention order is a discretionary decision made by the magistrate. It is one which is capable of more than one correct answer. It is also one particularly within the deep specialist expertise of a magistrate. Such a decision should not be set aside by this Court unless it was:
(a) made on a wrong principle;
(b) influenced by irrelevant matters;
(c) made without regard to relevant matters;
(d) based on a mistaken view of the facts; or
(e) plainly incorrect.
71There was no such error in the present case. It is a significant matter to impose an intervention order, which carries with it the potential for criminal sanctions for conduct which would not otherwise be unlawful. A ten-year term is a lengthy one. However, the Magistrate was faced with a situation where Mr Li continued to email multiple others, making accusations about Mr Brady, even after Mr Brady had left Comcare and joined a different department, even after a VCAT order had been made requiring contact in relation to the VCAT proceedings to be made to Mr Brady’s authorised representatives and even after an interim intervention order had been made. Mr Li had also attempted to connect with Mr Brady’s LinkedIn account with a user-name of “giveup Never”. The Magistrate had the benefit of seeing for herself the impact of this conduct on Mr Brady.
72There is nothing in the Magistrate’s ruling to suggest she took into account an erroneous belief that Mr Li had Mr Brady’s phone number or address. To the contrary, she explained to him at the conclusion of her ruling:
“You won’t be breached on this order if you accidentally come into contact with Mr Brady or within 200 metres of where he lives. But if you are found near his home because you’ve discovered where it is, if you go anywhere near him, if you actually make contact or write about him over the internet to a politician or a police office or anybody at all, if you do that you breach this order. If you breach this order, make no mistake, you will be charged with breaching an intervention order.”[46]
[46]T96, L27 ꟷ T97, L4 at CB 102
73Imposing a ten-year term was well within the permissible exercise of the magistrate’s discretion. There is no appealable error in relation to the ten-year term.
Grounds of appeal relating to the Costs Order
Failing to provide or have regard to the transcript of the Interim Intervention Order made 29 July 2024
Mr Li’s contentions
74Mr Li stated that the learned magistrate made the Costs Order against him because he had not provided enough convincing reasons why he had subpoenaed Mr Rapke. He contended that the transcript of the hearing on 29 July 2024 would have revealed that Mr Brady had tried to hide things about VCAT and was given an oral warning by the magistrate for perjury. He said this would have provided him a means to explain to the Magistrate why he had enough grounds to subpoena Mr Rapke. He also contended that Magistrate Bazzani, as the presiding magistrate, had an obligation to know what happened at the previous hearing and could not rely upon her lack of knowledge of what happened in her own court.
Court’s decision on ground of appeal
75The transcript reveals Mr Li was given ample opportunity to explain the reasons why he had subpoenaed Mr Rapke to attend court. He did not provide the Magistrate with any good reason why it was necessary or reasonable that Mr Rapke attend court to answer questions. Mr Rapke was the partner with the conduct of the defence of Mr Li’s VCAT claim against Mr Brady. Mr Rapke did not represent Mr Brady in relation to the IVO. In any event, Mr Rapke was not present at VCAT hearings in relation to Mr Li’s claim against Mr Rapke. Mr Rapke produced relevant correspondence to the Magistrates’ Court. However, this did not require his personal attendance.
76Even if some adverse comments were made by a magistrate about Mr Brady on 29 July 2024, it is not clear why this would require Mr Rapke’s attendance to give evidence. Indeed, the interim intervention order was extended on 29 July 2024 after a contested hearing. This indicates that the Magistrate who made the decision on 29 July 2024 did not view any adverse comments he may have made as fatal to Mr Brady’s application for an intervention order.
77I am not satisfied there was any error by Magistrate Bazzani in failing to obtain or have regard to the transcript of what occurred on 29 July 2024. I do not accept Magistrate Bazzani was under a duty to be aware of what was said in court by a previous magistrate. A magistrate cannot be expected to have knowledge of every comment made by another magistrate in a prior sitting of the Court. Nor is there any right to demand that the Court transcribe every hearing or fund the transcription of hearings upon request (or adjourn the hearing if the transcript is not available).
Awarding costs against Mr Li when the Magistrates’ Court had authorised subpoena to be issued
Mr Li’s contentions
78Mr Li was particularly aggrieved to have a costs order made against him in a context where the Magistrates’ Court had issued the subpoena at a hearing on 16 August 2024. He felt that if the Magistrates’ Court had doubts about the reasonableness of the subpoena, it would have raised them on 16 August 2024. He therefore felt justified in ignoring Mr Rapke’s requests for reasons for the subpoena.
Court’s decision on ground of appeal
79A subpoena is always issued by the Court, rather than a party, but it is done on the request of a party. The fact that a subpoena was issued after a hearing on 16 August 2024 (at which the addressee has not had an opportunity to be heard) does not provide any immunity from a costs order if the Court subsequently determines that requesting and relying on the subpoena was not reasonable.
80The evidence before the Magistrates’ Court was that Mr Li was asked twice to explain to Mr Rapke the reasons why Mr Rapke was being required to come to court. Mr Li did not do so. When asked to explain to the Court why Mr Rapke was required to come to court, rather than merely produce documents, he could not provide a satisfactory or reasonable explanation. In this context, there is no appealable error in the Magistrate’s determination that exceptional circumstances existed, nor in the exercise of her discretion to make an order for costs under s111(3).
Awarding costs against Mr Li when he could not explain why he had to issue the subpoena because he feared incriminating himself
Mr Li’s contentions
81Mr Li stated he had been informed there was a criminal proceeding against him at the start of the hearing and was fearful about fully explaining the purpose of the subpoena in case he incriminated himself. He said the Magistrate should have been able to understand the difficult situation he was in.
Court’s decision on ground of appeal
82At the start of the hearing, the Magistrate put a lot of effort into ensuring that Mr Li was provided with legal advice from an experienced practitioner in relation to the privilege against self-incrimination. Having received that advice, Mr Li elected to continue with the hearing. There is no indication in the transcript that Mr Li was withholding a valid explanation of why it was reasonable to subpoena Mr Rapke because of a fear of incriminating himself. Nor did he provide this Court with an explanation that would have made a difference to the Magistrate’s decision had he not feared incriminating himself. During oral submissions, Mr Li referred to the email sent on 21 June 2024. That email was before the Magistrate. It is not apparent why a fear of incriminating himself would have prevented Mr Li referring to that email (or its contents). Nor is it apparent why that email explains why it was reasonable to subpoena Mr Rapke to attend the hearing.
83No appealable error arises as a result of this ground.
Conclusion
84No appealable error has been established. The appeal is dismissed and the Orders of 30 October 2024 confirmed.
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