Pekar v Rickards
[2025] VSC 142
•26 March 2025
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
COMMON LAW DIVISION
JUDICIAL REVIEW AND APPEALS LIST
S ECI 2024 05400
BETWEEN:
| FIMA PEKAR | Appellant |
| v | |
| MICHAEL AIDAN RICKARDS | Respondent |
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JUDGE: | Ierodiaconou AsJ |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 19 March 2025 |
DATE OF RULING: | 26 March 2025 |
CASE MAY BE CITED AS: | Pekar v Rickards |
MEDIUM NEUTRAL CITATION: | [2025] VSC 142 |
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PRACTICE AND PROCEDURE – Application for dismissal of notice of appeal – Appeal of an order made in the Magistrates Court – Appeal per s 272 of the Criminal Procedure Act 2009 (Vic) – Whether the appellant is a ‘party to a criminal proceeding’ – Whether the Magistrate had made a final order – Supreme Court (Criminal Procedure) Rules 2017 (Vic) rr 3A.03, 3A.04, 3A.05 – Notice of appeal cannot be cured by amendment – No utility in substituting the respondent – No utility in remitting the proceeding to the Magistrates Court – Proceeding dismissed.
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APPEARANCES: | Counsel | Solicitors |
| The appellant in person | ||
| For the Respondent | Mr E Moon | Rickards Legal |
TABLE OF CONTENTS
Introduction
Summary
Evidence
Background
Mr Pekar’s appeal
Submissions
Mr Pekar’s submissions
Mr Rickards’ submissions
Is Mr Rickards’ application proper?
Applicable principles - dismissal
Should the proceeding be dismissed?
No substantial injustice
Should the defendant be substituted?
Should the proceeding be remitted to the Magistrates Court?
Conclusion
HER HONOUR:
Introduction
By way of summons filed on 6 December 2024, the respondent, Michael Rickards, seeks dismissal, summary judgment or strike out of the notice of appeal filed by the appellant, Mr Fima Pekar. In the alternative, Mr Rickards seeks security for costs.
At the hearing, and without notice, Mr Pekar made two oral applications. First, to substitute the respondent. It was common ground that the Magistrates Court, not Mr Rickards, is the proper respondent. Second, that if the proceeding is dismissed or struck out, it be remitted to the Magistrates Court.
Summary
The questions for determination and answers follow.
(a)Is Mr Rickards’ application proper? Yes.
(b)Should the proceeding be dismissed? Yes.
(c)Should the Magistrates Court be substituted for Mr Rickards? No. There is no practical utility in substitution given the proceeding will be dismissed.
(d) Should the proceeding be remitted to the Magistrates Court? No.
Evidence
Mr Rickards relies upon his affidavit affirmed on 26 November 2024 (‘Rickards affidavit’).
Despite being provided the opportunity to do so, Mr Pekar did not file any affidavits in opposition to this application. I have, however, read his affidavit sworn on 8 October 2024 and filed on 26 September 2024. This affidavit is irregular as it purports to be sworn after the filing date. I will treat this affidavit as a submission (‘Pekar affidavit’).
Both parties otherwise made oral and written submissions.
Background
The history between these parties spans over 15 years. It is unnecessary for me to reiterate the history in its entirety. For context, however, I will summarise some key dates and events referred to in the Rickards affidavit.
Mr Rickards is the sole principal of Rickards Legal Pty Ltd. In approximately 2010, Mr Pekar retained Rickards Legal to assist him in responding to two costs orders made against him in a Magistrates Court proceeding.[1]
[1]Affidavit of Michael Aidan Rickards affirmed on 26 November 2024 (‘Rickards affidavit’), [6].
On 29 July 2011, Rickards Legal issued Mr Pekar with a tax invoice for $6,302.73.[2]
[2]Rickards affidavit, [7].
Between October 2011 and April 2017, Mr Pekar issued 21 proceedings against either Mr Rickards, Rickards Legal, and/or an employee of Rickards Legal. These proceedings were issued in the Victorian Civil and Administrative Tribunal, the Magistrates Court, the Federal Circuit Court of Australia, and this Court.[3]
[3]Exhibit ‘MAR-1’ to the Rickards affidavit, 1-7.
On 11 August 2014, Mr Rickards filed a creditor’s petition against Mr Pekar in a Federal Circuit Court of Australia proceeding.[4] Subsequently, on 2 October 2014, the Federal Circuit Court made a sequestration order against Mr Pekar.[5] This order was affirmed on 12 February 2015.[6]
[4]Rickards affidavit, [11].
[5]Exhibit ‘MAR-1’ to the Rickards affidavit, 8.
[6]Ibid, 9-10.
On 17 July 2015, Mr Pekar applied to the Federal Circuit Court of Australia to annul his bankruptcy. His application was dismissed on 28 October 2015.[7]
[7]Ibid, 11-21.
On 7 June 2017, the Federal Circuit Court of Australia declared Mr Pekar a vexatious litigant and prohibited him from instituting any proceedings in that Court other than proceedings under the Family Law Act 1975 (Cth).[8]
[8]Ibid, 43.
On 6 September 2017, Mr Rickards lodged a proof of debt in Mr Pekar’s bankrupt estate for debts estimated at $32,202.29 (‘Proof of Debt’).[9] This followed various costs orders made in four proceedings filed in this Court, one proceeding filed in the Magistrates Court, and one proceeding filed in the Federal Circuit Court of Australia, plus statutory interest
[9]Ibid, 183-198.
On 15 October 2018, Mr Timothy Holden, then trustee of Mr Pekar’s bankrupt estate, paid Rickards Legal $6,000 for costs ordered by the Federal Circuit Court of Australia on 3 March 2017 and 7 June 2017.[10]
[10]Rickards affidavit, [27].
On 26 February 2021, in a proceeding commenced by Mr Pekar against Mr Holden, the Federal Court of Australia prohibited Mr Pekar from instituting any proceedings in that Court other than proceedings under s 104 of the Bankruptcy Act 1966 (Cth) (‘Bankruptcy Act’).[11]
[11]Exhibit ‘MAR-1’ to the Rickards affidavit, 85-101.
On 15 September 2022, Mr Pekar commenced a proceeding in the Magistrates Court against Rickards Legal and Mr Holden in relation to the payment of $6,000 made to Rickards Legal on 15 October 2018.[12] On 2 February 2023, the proceeding was dismissed and the Magistrate ordered that the Registrar of the Magistrates Court not accept any summons or proceeding filed by Mr Pekar involving his bankruptcy without prior leave of a Magistrate.[13]
[12]Exhibit ‘MAR-1’ to the Rickards affidavit, 170-174; Rickards affidavit, [38].
[13]Exhibit ‘MAR-1’ to the Rickards affidavit, 181-182.
On 26 August 2024, Mr Pekar made an application for leave to issue a charge sheet against Mr Rickards in Magistrates Court proceeding Z01901875. The application was listed for hearing on 5 September 2024. The application states:
ORDER(S) SOUGHT: LEAVE TO ISSUE A CHARGE SHEET AGAINST THE ACCUSED
GROUNDS FOR MAKING THIS APPLICATION: THE ACCUSED ALLEGEDLY COMMITTED AN OFFENCE AGAINST THE BANKRUPTCY ACT 1966 DEEMED BY THE ACT AS AN INDICTABLE OFFENCE.
On the charge sheet and summons, the charge is described as a ‘false declaration’, with a description of the offence as follows:
1. On 06.09.2017 the accused lodged a “Proof of debt” against the estate of the informant which was not true in particulars and, was supported by a False declaration which constitutes an indicatable offence under Bankruptcy Act 1966
2. The offence occurred at [Rickard’s postal address].
Act or Regulation
Act 33 Section 263(1)(d)(iii)
On 9 September 2024, Mr Pekar appeared in Magistrates Court proceeding Z01901875 to apply for leave to issue the charge sheet against Mr Rickards. Mr Pekar informed the Court that he attended the hearing before Magistrate Bazzani and that Mr Rickards was not present at the hearing. The application was refused by Magistrate Bazzani on the same day. I will refer to this as the ‘Magistrate’s decision’.[14] The notice of order made states that Mr Rickards is the accused / respondent. It records the application for leave to issue the charge sheet. The order is recorded as ‘Application refused’.
[14]Exhibit ‘FP1’ to the affidavit of Fima Pekar sworn on 8 October 2024 (‘Pekar affidavit’).
Mr Pekar’s appeal
On 26 September 2024, Mr Pekar filed his notice of appeal and the Pekar affidavit. By his notice of appeal, Mr Pekar seeks to appeal the whole of the Magistrate’s decision pursuant to s 272 of the Criminal Procedure Act 2009 (Vic) (‘Criminal Procedure Act’).
Mr Pekar’s notice of appeal purports to ask the following question of law.
Did the failure by the Magistrate to not and (sic) consider the relevant sections and requirements set out in the Bankruptcy Act 1966 supporting my application resulted (sic) in dismissal of my application?
1. Section 84 of the Bankruptcy Act 1966
2.Section 82(3B) of the Bankruptcy Act 1966
3. Requirements of section 3 related to manner of presenting “Proo[f] of Debt”
4. Section 263(1)(d)(iii) of the Bankruptcy Act 1966.
Mr Pekar seeks the following orders in his notice of appeal:
1. The order by Magistrate Louse Bazzani from 09.09.2024 to be set aside
2. The plaintiff is granted leave to issue a new Charge Sheet against the Defendant.
In the Pekar affidavit, Mr Pekar says that the learned Magistrate made four errors of law. First, he says the Magistrate did not state the legislation relied upon to refuse leave to issue the charge sheet. Second, he says the Magistrate failed to detect that the Proof of Debt filed by Mr Rickards was non-compliant with s 84(2) of the Bankruptcy Act as it did not provide any information in support of the claim. Third, that the Proof of Debt included ‘statutory and interest charges’. He says s 82(3B) of the Bankruptcy Act states that interest accrued after the date on which the debtor became bankrupt is not a debt that is provable in the bankruptcy. Fourth, he says the Magistrate failed to note the statement in the Proof of Debt that ‘more costs orders have been made against’ him in favour of Mr Rickards was not supported by a judgment. Further, he says Mr Rickards committed an indictable offence under s 263(1)(d)(iii) of the Bankruptcy Act as the Proof of Debt was not accurate and was supported by a false declaration.
On 17 October 2024, Mr Pekar filed a summons for directions. The summons was returnable before Lorenz JR on 13 November 2024. Lorenz JR made orders granting Mr Rickards leave to file any application as advised, and otherwise listed the proceeding for further directions (’13 November 2024 orders’).
On 26 November 2024, Mr Rickards filed the Rickards affidavit.
On 27 November 2024, the proceeding was listed for a directions hearing. Orders were made by McCann JR for the filing and hearing of the current application (’27 November 2024 orders’).
On 19 March 2025, the hearing of Mr Rickard’s summons proceeded as listed.
Submissions
Mr Pekar’s submissions
Mr Pekar submitted that Mr Rickard’s summons should be dismissed as it is deceptive and misleading. Mr Rickards was named as the respondent by an error and he has no right to seek dismissal of the proceeding. The correct party is the Magistrates Court of Victoria at Moorabbin.
On 13 November 2024 the Court granted leave to Mr Rickards to issue a summons seeking the following orders: that leave be granted to amend the notice of appeal to name the Magistrates Court as the proper party; that Mr Rickards has no interest in the proceeding and should be excused; and that Mr Rickards attach an affidavit to the summons. This summons was agreed by both parties. The 13 November 2024 orders granted Mr Rickards leave to file the summons under these conditions. The current summons filed by Mr Rickards should be declared invalid and dismissed.
In respect of the costs of this application, Mr Rickards filed unrelated documents, such as submissions and the book of authorities, without Court orders and attended hearings without requested documents in order to increase the costs of this application. This conduct is unconscionable and dishonest. There should be no order as to costs.
In respect of the charge sheet sought to be filed in the Magistrates Court, the Proof of Debt shows that Mr Rickards has committed an indictable offence under s 263(1)(d)(iii) of the Bankruptcy Act that is punishable by five years in prison. It is conceded that this was not a proceeding: it was leave to apply for a proceeding.[15]
[15]Transcript of proceedings, Pekar v Rickards (Supreme Court of Victoria, S ECI 2024 05400, Ierodiaconou AsJ, 19 March 2025) (‘T’), 22.29-31.
The appeal was made under s 272 of the Criminal Procedure Act as this section was proposed by the Court’s Registry.[16]
[16]T 22.5-9.
Mr Rickards’ submissions
Mr Rickards submitted that Mr Pekar’s appeal is misconceived and fails at the threshold.
Firstly, Mr Pekar does not have standing to commence an appeal under s 272(1) of the Criminal Procedure Act.This section provides for ‘a party to a criminal proceeding’ in the Magistrates Court to appeal to this Court. Mr Pekar is not a party to a criminal proceeding. Section 5 of the Criminal Procedure Act relevantly states that a criminal proceeding is commenced by ‘filing or signing a charge-sheet in accordance with section 6’. Section 6(1)(a) states that a criminal proceeding is commenced ‘by filing a charge-sheet containing a charge with a registrar of the Magistrates' Court’. The Magistrate’s decision to dismiss Mr Pekar’s oral application to file the charge sheet is not equivalent to the filing of a charge sheet. A criminal proceeding has not been commenced.
Secondly, s 272(1) of the Criminal Procedure Act requires a party to a criminal proceeding to appeal on a question of law ‘from a final order of the Magistrates’ Court’. The Magistrate’s decision was not a final order. The test set out in Kinex Exploration v Tasco Pty Ltd[17] in ‘determining whether a judgment is final or not’ is whether the order ‘finally determines the rights of the parties’. The Magistrate’s decision is not final. Mr Pekar could attend the Magistrates Court again and seek to file another charge sheet.
[17](1995) 2 VR 318, 320.
As such, Mr Pekar’s notice of appeal has no real prospect of success and should be dismissed.
Mr Pekar may seek to convert this proceeding to an application for judicial review under order 56 of the Supreme Court (General Civil Procedure) Rules 2015 (‘Rules’). Should he seek to do so, Mr Rickards would not be a proper party to that proceeding, the proceeding would need to be commenced via originating motion which would require an extension of time, and the notice of appeal does not contain a question of law.
In the alternative, the notice of appeal should be struck out as it does not disclose a cause of action and/or it may prejudice, embarrass or delay a fair trial.
Is Mr Rickards’ application proper?
The application is proper.
Mr Rickards is currently a party to the proceeding. This is a because he was so-named by Mr Pekar in the notice of appeal. On 12 November 2024, he filed a conditional appearance. Per r 8.08(3) of the Rules, a ‘conditional appearance shall have effect for all purposes as an unconditional appearance, unless, on application by the defendant, the Court otherwise orders.’
On 13 November 2024, Lorenz JR made the 13 November 2024 orders. Paragraph 1 of the orders gave Mr Rickards leave to make any application as advised, by way of summons on or before 20 November 2024. Per r 46.02(1) of the Rules, an ‘application made on notice to any person shall be by summons, unless the Court otherwise orders.’
Other Matters of the 13 November 2024 orders record:
B. The respondent submits that the correct respondent to the proceeding is the Magistrates’ Court of Victoria, that that the appellant should be ordered to file an amended notice of appeal. The respondent submits alternatively that the proceeding ought be dismissed.
C. The Court was not on notice of any application prior to today’s directions hearing. In the circumstances, the proceeding is adjourned to allow sufficient time for the parties to raise any application they wish to make.
The 13 November 2024 orders did not compel Mr Rickards to issue an application but gave him leave to do so by 20 November 2024. The orders listed the proceeding for a directions hearing on 27 November 2024.
The parties appeared on 27 November 2024 before McCann JR, who made the 27 November 2024 orders. The orders record in paragraph B that on ‘ 26 November 2024 the respondent filed an affidavit in support of a foreshadowed application to dismiss the proceeding.’ Paragraph 1 of the orders corrected the name of the respondent. The 27 November 2024 orders foreshadowed and timetabled the current application. Specifically, paragraph 2 of those orders provided:
2. The respondent has leave to make any application in relation to the proceeding, by way of summons with supporting affidavit pursuant to Order 46 of the General Rules (‘Application’), such application to be listed for hearing not before 28 February 2025.
The 27 November 2024 orders allowing Mr Rickards to make any application superseded the 13 November 24 orders which had required the application be made by 20 November 2024.
Mr Rickards made an application by summons filed on 6 December 2024. This was consistent with the 27 November 2024 orders. Mr Pekar concedes that he was on notice of the summons and supporting affidavit.
Applicable principles - dismissal
A notice of appeal must comply with rr 3A.03 and 3A.04 of the Supreme Court (Criminal Procedure) Rules 2017 (Vic) (‘Criminal Procedure Rules’):
3A.03 Notice of appeal
(1) A notice of appeal under section 272 of the Act or section 430P of the Children, Youth and Families Act 2005 shall—
(a) be signed by the appellant or the appellant’s legal practitioner;
(b) set out or state—
(i) whether leave to appeal is required;
(ia) the order which is the subject of appeal;
(ii) whether the appeal is from the whole or part only of the order and, if so, what part;
(iii) the question of law upon which the appeal is brought;
(iv) concisely the grounds of appeal;
(v) the order sought in place of that from which the appeal is brought; and
(c) at its end, name all the persons on whom it is proposed to serve the notice of appeal.
(2) As soon as practicable after filing the notice of appeal, the appellant shall—
(a) deliver a copy to the registrar or other proper officer of the court that made the order the subject of the appeal;
(b) unless the Court otherwise orders, serve a copy of the notice on all persons directly affected by the appeal.
(3) The requirements under paragraph (2) are in addition to the requirements of—
(a) section 272(4) and (5) of the Act, in the case of an appeal or application for leave to appeal under Part 6.2 of Chapter 6 of the Act; and
(b) section 430P(4) and (5) of the Children, Youth and Families Act 2005, in the case of an appeal or application for leave to appeal under Division 5 of Part 5.4 of Chapter 5 of that Act.
(4) The Court may give leave to amend the grounds of appeal or make any other order to ensure the proper determination of the appeal.
3A.04 Appellant to file affidavit
(1) Within seven days after filing notice of appeal, the appellant shall file an affidavit stating the acts, facts, matters and circumstances relating to—
(a) the order under appeal;
(b) the grounds set out in the notice of appeal; and
(c) if leave to appeal is needed, why leave to appeal should be given.
(2) There shall be included as exhibits to the affidavit—
(a) a copy of the order under appeal; and
(b) a copy of any reasons given for the order—
or their absence as exhibits shall be accounted for in the affidavit.
Rule 3A.05(9) provides that:
(9) The Court may dismiss the appeal if satisfied that—
(a) the notice of appeal does not identify sufficiently or at all a question of law on which the appeal may be brought;
(b) the appellant does not have an arguable case on appeal or to refuse leave would impose no substantial injustice; or
(c) the appeal is frivolous, vexatious or otherwise an abuse of the process of the Court.
Per r 3A.10, an Associate Justice has the power to hear and determine any application under r 3A.05.
Should the proceeding be dismissed?
The appeal must be dismissed per r 3A.05(9). Mr Pekar does not have an arguable case for the following reasons.
The appeal is brought under s 272 of the Criminal Procedure Act. Section 272(1) states as follows:
A party to a criminal proceeding (other than a committal proceeding) in the Magistrates’ Court may appeal to the Supreme Court on a question of law, from a final order of the Magistrates' Court in that proceeding.
This requires there be a criminal proceeding and that the appeal be from a final order. As I will explain, that is not the case here.
The term ‘criminal proceeding’ is not defined in the legislation. However, pursuant to section 5(a), a criminal proceeding is commenced ‘by filing or signing a charge-sheet in accordance with section 6’. Section 6 states:
(1) A criminal proceeding is commenced—
(a) by filing a charge-sheet containing a charge with a registrar of the Magistrates’ Court; or
(b)if the accused is arrested without a warrant and is released on bail, by filing a charge-sheet containing a charge with a bail justice; or
(c) if a summons is issued under section 14, at the time the charge-sheet is signed.
(2) If a charge-sheet is filed in accordance with the method prescribed by the rules of court for electronic filing, the requirements of section 8(1) of the Electronic Transactions (Victoria) Act 2000 are taken to have been met.
(3) A charge-sheet must—
(a) be in writing; and
(b) be signed by the informant personally; and
(c) comply with Schedule 1.
In Fox v DPP,[18] the Court of Appeal held that:
It is the step of filing a charge-sheet that vests the Magistrates’ Court with jurisdiction to hear the proceeding.
[18](2022) 66 VR 223, [7]
In considering whether a charge sheet had been filed, Niall JA (as his Honour then was) held in Fiore v Magistrates’ Court of Victoria[19] that it was a question of fact whether a document had been filed, with proof facilitated by the fixing of a stamp.[20] However, the ‘rules do not provide that a document is not filed unless and until it is stamped.’[21]
[19][2020] VSC 92 (‘Fiore’), [114].
[20]See: Magistrates' Court Criminal Procedure Rules 2019 (Vic), s 11.
[21]Fiore, [114].
As leave was not given to file the charge sheet, no criminal proceeding commenced.
An appeal under s 272(1) must be on a question of law from a final order of the Magistrates Court. In Chalker v Baldwin,[22] Niall JA (as his Honour then was) considered the words ‘final order’ within the context of s 272. I gratefully adopt his Honour’s analysis at [15]-[17]:
[22][2021] VSC 644.
The legal effect of an order of a magistrate striking out a charge has been the subject of a number of decisions in this Court. In R v McGowan, charges were struck out by a magistrate on the basis that the court lacked jurisdiction to hear the charges. This Court subsequently held that the court did have jurisdiction. The question then arose as to whether a magistrate could set aside an order striking out the charges and reinstate them for hearing. In the course of holding that a magistrate could set aside such an order, Kaye J concluded that:
[A]n order striking out an information does not put an end to the proceedings. It is not a curial determination of the charge alleged; it is no more than a direction to remove the information from the list of matters for hearing and determination by the Court.
That reasoning was adopted as correct by the Court of Appeal in Director of Public Prosecutions v Moore, where it was held that the Supreme Court, on appeal from the Magistrates’ Court, did not have jurisdiction to entertain an appeal from an order of the Magistrates’ Court striking out a charge filed in the court. Batt JA (with whom Chernov and Eames JJA agreed), citing R v McGowan, said:
The general principle is that what has been struck out, whether it be an information, charge, summons, proceeding or appeal, may be restored or reinstated, because the legal effect of striking out is merely to take the subject matter out of the court lists. As the subject matter is capable of being brought on again, the order striking it out is not final.
Based on those decisions, I am bound to conclude that the order of the magistrate striking out the charges was not a final order for the purpose of s 272 of the CPA. The order striking out the charges did not involve a determination of the charges. As a matter of legal effect it remains open for the charges to be reinstated. There has been no final determination of rights. The present appeal must be dismissed as incompetent. (citations omitted)
A similar analysis applies here. The order of the Magistrate refusing leave to issue the charge is not a final order. The appeal is not legally competent.[23]
[23]Tatana v DPP [2011] VSC 316, [20].
Finally, per 3A.04(2)(b) of the Criminal Procedure Rules, Mr Pekar was required to provide an affidavit with the Magistrate’s reasons or an explanation for their absence. He did not provide this affidavit. Nor did Mr Pekar provide an affidavit responsive to the 27 November 2024 orders. He has produced no evidence in support of the statement in paragraph 1 of his irregular affidavit, being the Pekar affidavit, that the Magistrate ‘refuse[d] the application out of hand without stating under which law or legislation the application was refused which (sic) the bases for An Appeal.’ In particular, Mr Pekar has not produced the transcript of the hearing before the Magistrate or deposed as to why it cannot be produced.
Without the transcript of the hearing, or the Magistrate’s reasons, any consideration of the same is mere speculation. At any rate, it is unnecessary given the appeal is incompetent.
No substantial injustice
There is no substantial injustice in dismissing the proceeding. It seems that Mr Pekar agrees that the proceeding should not have been commenced under the Criminal Procedure Act. He perhaps wishes to continue the proceeding directly under ss 84 or 263 of Bankruptcy Act. Section 84 concerns the manner of proving debts. Section 263 concerns concealment of property with intent to defraud and is a penalty provision. Those sections do not provide a mechanism to appeal the Magistrate’s orders. This is not a situation where Mr Pekar’s notice of appeal can be cured by amendment. To allow his appeal to continue would cause unnecessary costs, and be an inefficient use of time.
Pursuant to r 3A.05(9) of the Criminal Procedure Rules, Mr Pekar’s appeal must be dismissed.
Given the findings above, it is unnecessary to address Mr Rickards’ alternative applications.
As a matter of completeness, I will address the two oral applications made by Mr Pekar.
Should the defendant be substituted?
Per r 9.06 of the Rules, the Court has the power to add, remove or substitute a party. However, here, as the proceeding will be dismissed, there is no utility in substituting a party. Even if the Magistrates Court was added or substituted as respondent to the proceeding, for the reasons discussed, the proceeding should be dismissed.
Should the proceeding be remitted to the Magistrates Court?
After hearing and determining an appeal, a matter may be remitted to the Magistrates Court for rehearing per s 272(9) of the Criminal Procedure Act. Here, the matter has not proceeded to trial but is being dismissed summarily. There is no basis to remit it to the Magistrates Court. Further, given the reasons for dismissal, there is no practical utility in doing so.
Conclusion
Orders will be made dismissing the proceeding.
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