Re Thorpe [No 3] - [2025] VSCA 219

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S EAPCI 2025 0023

IN THE MATTER of proposed judicial directions, on the application of UNCLE ROBBIE THORPE

UNCLE ROBBIE THORPE

Applicant

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JUDGES:	EMERTON P and WALKER JA
WHERE HELD:	Melbourne
DATE OF HEARING:	Determined on the papers
DATE OF JUDGMENT:	12 September 2025
MEDIUM NEUTRAL CITATION:	[2025] VSCA 219

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PRACTICE AND PROCEDURE – Filing – Power to direct Registrar to accept documents for filing – Registrar refused to accept documents for filing – Applicant sought review of Registrar’s decision and judicial direction to Registrar to accept documents for filing – Documents were applications other than for leave to appeal – Documents mostly sought orders that the Court would not make – Documents mostly irregular, and/or frivolous or vexatious, and/or would give rise to abuse of process – Application for direction refused for most documents – Application for direction allowed in respect of two documents.

Supreme Court (General Civil Procedure) Rules 2015, rr 64.13, 64.43.

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Counsel
Applicant:		In person
Respondent:		Not applicable
Solicitors
Applicant:	Not applicable
Respondent:	Not applicable

EMERTON P
WALKER JA:

On 20 October 2023, Uncle Robbie Thorpe (‘the applicant’) sought to file a charge sheet and summons in the Magistrates’ Court of Victoria naming himself as the informant and King Charles III as the accused. The charge-sheet alleged that King Charles III had committed ‘continuing acts of genocide … against First Peoples’.
On 29 December 2023, a senior registrar of the Magistrates’ Court refused to issue the summons and did not initiate a proceeding. The applicant sought judicial review of this decision and the matter proceeded by way of a trial in July 2024 before Richards J. In her judgment delivered on 5 February 2025, Richards J found that the Magistrates’ Court was correct to refuse to issue the proposed proceeding and the application was dismissed.[1]
[1]Thorpe v Magistrates’ Court of Victoria [2025] VSC 22.
The applicant has since filed an application in this Court for leave to appeal Richards J’s decision (the ‘principal proceeding’), the hearing of which is listed on 2 December 2025 alongside various joinder applications. These include applications to join to the principal proceeding the Attorney-General of the Commonwealth of Australia, the Prosecutor of the International Criminal Court, the Prime Minister of the United Kingdom, the Secretary-General of the United Nations and the Secretary-General of British of Commonwealth of Nations. In addition, the applicant has filed three other applications for leave to appeal and, within the principal proceeding, further applications other than for leave to appeal. There are currently also on foot numerous applications filed by non-parties for leave to intervene in the principal proceeding.
On 14 August 2025, pursuant to r 64.43 of the Supreme Court (General Civil Procedure) Rules 2015 (the ‘Rules’), the Registrar of the Court of Appeal refused to accept for filing six applications other than for leave to appeal made within the principal proceeding. The applications sought various orders relating to the identity or racial…

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 3]

Details

AGLC: Re Thorpe [No 3] [2025] VSCA 219
Case: [2025] VSCA 219
Decision Date: 12 September 2025

CaseChat Overview and Summary

In the case of Re Thorpe [No 3], the applicant, Uncle Robbie Thorpe, sought a review of the Registrar's decision to refuse to accept several documents for filing in relation to his application for leave to appeal. The documents were intended to support his application by providing further evidence, including affidavits and written statements, that were not presented in the initial proceedings. The Registrar rejected the documents on the grounds that they attempted to circumvent the process for determining intervention applications and lacked a proper basis in light of the issues for determination in the appeal application.

The central legal issues before the court were whether the Registrar had the authority to refuse the documents and whether the court could direct the Registrar to accept them. The court needed to determine if the applicant's attempt to adduce further evidence complied with the requirements set out in the Supreme Court (General Civil Procedure) Rules 2015. Specifically, the court examined whether the application for further evidence was made in accordance with rule 64.13, including the procedural requirements for timing and content.

The court found that the Registrar's refusal to accept the documents was not justified. It held that an application to adduce further evidence from a proposed intervenor does not circumvent the intervention process, as these are distinct legal processes. The court also noted that the applicant's submissions did not adequately explain why the proposed evidence was not presented at the trial. The court concluded that while most of the documents were irregular, frivolous, or vexatious, two documents were deemed acceptable for filing. These were the affidavit and the grounds of the application for leave to appeal.

The court ultimately refused the application for direction in respect of most of the documents but allowed it in relation to the affidavit and the grounds of the application for leave to appeal. These two documents were accepted for filing, and the Registrar was directed to process them accordingly.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

It is convenient to set out the terms of r 64.13:64.13 Further evidence in application for leave to appeal or appeal(1)Unless the Court of Appeal otherwise orders, in an application for leave to appeal or an appeal—(a) oral evidence shall not be adduced; and(b)evidence which was not before the court or tribunal whose decision is sought to be appealed or is being appealed shall not be relied upon.(2)A party may apply for the Court of Appeal to receive oral evidence or further evidence, as the case may be.(3)The application shall—(a) be in accordance with Form 64B;(b)be filed and served at least 28 days before the hearing of the application or the appeal;(c) be accompanied by an affidavit stating—(i) briefly but specifically, the facts on which the party relies;(ii) the grounds of the application for leave to appeal or the appeal to which the application relates;(iii) the evidence the party wants the Court of Appeal to receive; and(iv) why the evidence was not adduced in the court or tribunal the decision of which is the subject of the application or appeal; and(d)be accompanied by any additional documents required by any applicable practice note.… In accordance with r 64.13, the applicant sought to file the following documents in support of his application,:(a)an accompanying affidavit stating the facts on which he relies;(b)the grounds of the application for leave to appeal;(c)the evidence that he wants the Court to receive; and(d)why that evidence was not adduced before the trial court. He submitted that the evidence of the intervenors was not available at trial because ‘there were no intervenors in that proceeding’ and that the Yoorrook Justice Commission recommendations were not made available until 1 July 2025, after the trial had concluded. Similarly, the further evidence of the applicant’s attempts to charge the Commonwealth Attorney-General with genocide ‘only occurred after the hearing’. It will be recalled that the Registrar refused to accept these documents for filing on the following two bases:(a)First, in relation to the 522627 documents, on the basis that, insofar as they concern evidence to be given by persons who have sought leave to intervene, they seeks to ‘circumvent’ the process of determining the intervention applications; and(b)More generally, on the basis that, in light of the issues for determination in the application for leave to appeal, no proper basis for the proposed further evidence application is identified. In relation to the first basis, we do not consider it is correct to say that an application to adduce further evidence from a person who is also a person who has sought leave to intervene is properly characterised as an attempt to circumvent the intervenor process. First, the existence of an application for leave to adduce further evidence from a proposed intervenor will have no impact on the Court’s consideration of the application for leave to intervene. Secondly, if leave to intervene were to be granted, including potentially with limitations as to the manner in which the intervenor could participate in the hearing, that would be no barrier to a grant of leave to Uncle Robbie Thorpe to adduce further evidence from that person, should the Court be persuaded that course was appropriate; that would be quite different from participation as an intervenor. Thirdly, if leave to intervene were to be refused, that would also be no barrier to a grant of leave to Uncle Robbie Thorpe to adduce further evidence from that person, should the Court be persuaded that course was appropriate. Of course, the prospects of a grant of leave to adduce further evidence in the third circumstance may well be affected by the Court’s reasons for refusing leave to intervene. But, in short, the two processes are different and one does not involve an attempt to circumvent the other.

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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