Pekar v Rickards - [2025] VSC 142

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…

Grounds of appeal

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

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

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

Consideration

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

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

Continue reading Pekar v Rickards

Details

AGLC: Pekar v Rickards [2025] VSC 142
Case: [2025] VSC 142
Decision Date: 26 March 2025

CaseChat Overview and Summary

The respondent, Pekar, applied for the dismissal of the appellant's notice of appeal. The appellant, Rickards, had appealed against an order made in the Magistrates Court in relation to an application for an apprehended violence order. The appeal was brought under section 272 of the Criminal Procedure Act 2009 (Vic) and concerned whether Rickards was a 'party to a criminal proceeding' and if the Magistrate had made a final order. The application was heard in the Supreme Court.

The court had to decide if Rickards was a 'party to a criminal proceeding' and whether the Magistrate's order was a final order. The court also needed to determine whether Rickards' notice of appeal was defective and whether it could be amended or if the appeal should be remitted to the Magistrates Court for correction. The court examined the relevant sections of the Supreme Court (Criminal Procedure) Rules 2017 (Vic) to determine if the appeal could be dismissed.

The court found that Rickards was not a 'party to a criminal proceeding' within the meaning of the Criminal Procedure Act 2009 (Vic). The court also found that the order made by the Magistrate was not a final order. The court concluded that Rickards' notice of appeal was defective and could not be cured by amendment. The court found that there was no utility in substituting the respondent or in remitting the proceeding to the Magistrates Court for correction. The appeal was dismissed.

The court dismissed the appeal and ordered that the proceeding be dismissed. The court found that Rickards was not a party to a criminal proceeding and that the order made by the Magistrate was not a final order. The court also found that Rickards' notice of appeal was defective and could not be cured by amendment. The court concluded that there was no utility in substituting the respondent or in remitting the proceeding to the Magistrates Court for correction.

Orders