PPP (a pseudonym) v DDA (a pseudonym) (No 3)

[2023] VSC 688

IN THE SUPREME COURT OF VICTORIA Not Restricted

AT MELBOURNE

COMMON LAW DIVISION

JUDICIAL REVIEW AND APPEALS LIST

S ECI 2022 04527

PPP (a pseudonym)	Plaintiff
v
DDA (a pseudonym) & ORS (according to the attached schedule)	Defendants

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JUDGE:	Gorton J
WHERE HELD:	Melbourne
DATE OF HEARING:	On the papers
DATE OF RULING:	23 November 2023
CASE MAY BE CITED AS:	PPP (a pseudonym) v DDA (a pseudonym) (No 3)
MEDIUM NEUTRAL CITATION:	[2023] VSC 688

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PRACTICE AND PROCEDURE – Whether application to reopen a previously dismissed application should be given an urgent hearing – Where not in the interests of justice to do so at this stage.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	No appearance	N/A
For the First Defendant	No appearance	N/A
For the Second Defendant	No appearance	N/A
For the Third Defendant	No appearance	N/A
For the Fourth Defendant	No appearance	Victorian Government Solicitor
For the Fifth Defendant	No appearance	Magistrates’ Court of Victoria
For the Sixth Defendant	No appearance	Corrs Chambers Westgarth

HIS HONOUR:

1. PPP, the plaintiff in this proceeding, is facing criminal charges and DDA, the first defendant in this proceeding, is a key witness in the case against him.  On 12 September 2022, the Magistrates’ Court of Victoria made an interim family violence intervention order by which, among other things, PPP is precluded from contacting DDA.  By para 6 of a summons filed in this proceeding on 25 January 2023, PPP sought an order staying an interim intervention order made against him.  On 18 August 2023, I heard that application.  On 23 August 2023, I published reasons in which I said I would not make the injunction.[1]  On 7 September 2023, I made orders dismissing that application.  As my earlier reasons provide, I dismissed the application because I formed the view that:

(a)   PPP’s arguments that the interim intervention order was made unlawfully were ‘difficult’;[2] and

(b)  The balance of convenience was ‘strongly against the making of an order that prevents the interim intervention order continuing in effect until the matter is finally determined by the Magistrates’ Court.[3]

[1]PPP v DDA [2023] VSC 494.

[2]Ibid [61].

[3]Ibid [64].

1. On the afternoon of Thursday 23 November 2023, that is, today, PPP, through an associate, emailed my chambers attaching a document headed ‘Application to Reopen the Case’,[4] and sought an urgent hearing of that application on the afternoon of Friday 24 November 2023, that is, tomorrow. The Application to Reopen was said to be urgent because ‘the Magistrate’ is ‘set to decide’ on 27 November 2023 whether PPP should be permitted to cross-examine DDA in person at a committal hearing that is scheduled for hearing in the Magistrates’ Court on 29 November 2023. PPP contends that his ‘right to a fair trial and his rights to freedom of mobility and personal protection will be compromised if the injunction is not granted prior to 27 November 2023’. The application was accompanied by:

   [4]No summons was filed.  The plaintiff provided via email a document entitled ‘Form 6 – 1D – Application for Injunction & To Reopen The Case’ seeking orders be made in accordance with the document referenced above entitled ‘Application to Reopen the Case’.

(a)   A 134 page submission dated 22 November 2023 that was prepared, it seems, as part of an application made by PPP to me in another proceeding.  He was not given leave in that other proceeding to file that document;

(b)  A 48 page submission dated 22 August 2023, that is, from before I made my earlier orders; and

(c)   A 33 page submission dated 7 September 2023, that is, again, from before I made my earlier orders.

1. The application document indicates that PPP will also be relying on an affidavit that is to be provided tomorrow morning.  The application document does not outline the material that will be contained in that affidavit.  No reason has been put forward for why the affidavit material has not been prepared before now.  Nonetheless, PPP is pressing the Court, now, that his application be listed for urgent hearing tomorrow.

1. PPP has put forward, in his application document, the following principal reasons in support of why his application should be listed for urgent hearing (and should succeed):

(a)   He is concerned that the Magistrate might prevent him from cross-examining DDA in person; and

(b)  My earlier decision was, he said, wrongly decided and has been ‘exploited’ by Victoria Police to ‘create oppression’ for him.

1. I have decided not to list PPP’s application to reopen the application for an injunction for an urgent hearing tomorrow because I am satisfied that, at the moment, there is no real need that it be determined tomorrow and, if it were, there is no real prospect that it would succeed.  Most significantly, the Magistrate has not yet determined whether or not to let PPP cross-examine DDA in person.  That is a matter, essentially, for the Magistrate to decide in the proper management of the proceeding in that Court.  The matter is, at present, somewhat hypothetical.  If the Magistrate were to permit PPP to cross-examine in person, there may be little or no need, even on PPP’s best case, to make the injunction sought.  If the Magistrate were to rule that PPP not be permitted to cross-examine DDA in person, then the Court would, at the very least, likely have before it any reasons for which the Magistrate made that decision.  Consideration would then have to be given to whether or how PPP is able to engage lawyers to appear for him in that committal hearing.  Proper notice may have to be given to other persons who might be affected if the application is to be heard.  Either way, it is not in the interests of justice that the Court convene urgently, tomorrow, to consider the application before the Magistrate has made that decision.

1. In saying this, I am not saying that the Court will urgently hear an application in the event that the Magistrate does deny to PPP the ability to cross-examine DDA in person.  That is something that would have to be considered in due course.

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SCHEDULE OF PARTIES

S ECI 2022 04527

PPP (a pseudonym)	Plaintiff
-and-
DDA (a pseudonym)	First Defendant
DDB (a pseudonym)	Second Defendant
DDC (a pseudonym)	Third Defendant
THE STATE OF VICTORIA	Fourth Defendant
THE MAGISTRATES’ COURT OF VICTORIA	Fifth Defendant
VICTORIAN LEGAL SERVICES BOARD (ABN 82 518 945 610)	Sixth Defendant