Re Thorpe (No 2) - [2024] VSC 408

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

PRACTICE COURT

Proposed proceeding S ECI 2024 01879

In the matter of a proposed proceeding, on the application of ROBERT THORPE

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JUDGE:	Richards J
WHERE HELD:	Melbourne
DATE OF HEARING:	On the papers
DATE OF JUDGMENT:	12 July 2024
CASE MAY BE CITED AS:	Re Thorpe (No 2)
MEDIUM NEUTRAL CITATION:	[2024] VSC 408

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PRACTICE AND PROCEDURE — Applicant sought to file documents to commence a criminal proceeding seeking directions for the assembly of a special court to hear certain matters — Deputy Prothonotary refused to seal documents as substantially and procedurally irregular — Applicant sought review of refusal under r 28A.03(5) of the Supreme Court (General Civil Procedure) Rules 2015 (Vic) — Court does not have power to make directions sought in proposed proceeding — No direction made — Constitution Act 1975 (Vic), s 104(1) — Supreme Court (General Civil Procedure) Rules 2015 (Vic), r 28A.04.

HER HONOUR:

On 16 March 2024, Robert Thorpe attempted to file a document in the Criminal Division of this Court headed ‘Application of Robert Thorpe’. The application was addressed to Charles Arthur Philip George Windsor and Jacinta Allan — that is, to the King of Australia and the Premier of Victoria. It gave notice that Mr Thorpe would apply ‘pursuant to the Court’s inherent and implied criminal jurisdiction’ for orders to be made by the Chief Justice.

The orders that Mr Thorpe proposed to seek from the Chief Justice included directions that:

(a) A special proceeding be commenced in the Court’s criminal jurisdiction in a matter of genocide charges against Charles Windsor brought by Mr Thorpe and Aunty Alma Thorpe;

(b) The assembly of a special court, to be called the ‘Aboriginal Genocide Court’, comprising Chief Justice Ferguson, Justice Emerton, the President of the Court of Appeal, Justice Jane Dixon, the Principal Judge of the Criminal Division, and three specially appointed Associate Justices, being Irene Watson, a law professor from South Australia, Tony McAvoy SC, a barrister based in Sydney, and Justice Louise Taylor, a Judge of the Supreme Court of the Australian Capital Territory; and

(c) Three specific matters be listed forthwith before the Aboriginal Genocide Court, and otherwise be stayed pending their listing before that court.

The three matters that Mr Thorpe sought to have heard by the Aboriginal Genocide Court are:

(a) Proceeding S ECI 2024 01011, in which Mr Thorpe seeks judicial review of a decision of the Magistrates’ Court of Victoria to refuse to issue a proposed criminal proceeding in which Mr Thorpe sought to charge the King with the offence of genocide (MCV case);

(b) A proposed appeal by Mr Thorpe from the same decision of the Magistrates’ Court, under s 272 of the Criminal Procedure Act 2009 (Vic) (SCV appeal notice); and

(c) An application made by Mr Thorpe to the Magistrates’ Court on 4 March 2023 for directions about the form and procedure of any appeal or review of…

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 Re Thorpe (No 2)

Details

AGLC: Re Thorpe (No 2) [2024] VSC 408
Case: [2024] VSC 408
Decision Date: 12 July 2024

CaseChat Overview and Summary

The applicant, Thorpe, sought to file documents to commence a criminal proceeding to assemble a special court for certain matters. The Deputy Prothonotary refused to seal the documents due to their procedural and substantial irregularity, prompting Thorpe to seek review of the refusal under rule 28A.03(5) of the Supreme Court (General Civil Procedure) Rules 2015 (Vic). The applicant argued that the refusal was wrong and sought to file documents to commence a criminal proceeding. The primary legal issue was whether the court had the power to make the directions sought by the applicant in the proposed proceeding. The court examined whether the applicant's proposed proceeding was a criminal proceeding and if the court had the power to make the directions sought.

The court found that the applicant's proposed proceeding was not a criminal proceeding. It also held that the court did not have the power to make the directions sought in the proposed proceeding. The court relied on section 104(1) of the Constitution Act 1975 (Vic) and rule 28A.04 of the Supreme Court (General Civil Procedure) Rules 2015 (Vic) to conclude that it did not have the power to make the directions sought. Consequently, the application for review was dismissed, and no direction was made. The court's decision was based on the lack of power to make the directions sought in the proposed proceeding and the finding that the proceeding was not a criminal proceeding.

Orders