Shari v State of Victoria

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S EAPCI 2024 0110

KEVIN SHARI	Applicant
v
STATE OF VICTORIA	Respondent

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JUDGES:	BEACH and KENNEDY JJA
WHERE HELD:	Melbourne
DATE OF HEARING:	25 March 2025
DATE OF JUDGMENT:	3 April 2025
MEDIUM NEUTRAL CITATION:	[2025] VSCA 55
JUDGMENT APPEALED FROM:	[2024] VCC 815 (Judge Clayton)

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PRACTICE AND PROCEDURE — Summary judgment — Applicant pleaded guilty to breach of personal safety intervention order in Magistrates’ Court — Magistrate ordered that matter be adjourned without conviction on applicant’s undertaking — Where applicant brought civil proceeding against the State alleging that police failed to conduct proper investigation — Judge dismissed proceeding as abuse of process by reason of impermissible collateral attack on Magistrates’ Court decision — Where applicant’s appeal of Magistrate’s decision subsequently successful — No error in judge’s ruling or determination — Other proposed grounds of appeal lacking merit — Application for leave to appeal refused.

Beckett v New South Wales (2013) 248 CLR 432; Soo v Victoria Legal Aid [2023] VSC 289; Soo v Victoria Legal Aid [2023] VSCA 330, discussed.

Cabassi v Vila (1940) 64 CLR 130; D’Orta-Ekenaike v Victoria Legal Aid (2005) 223 CLR 1; GLJ v The Trustees of the Roman Catholic Church for the Diocese of Lismore (2023) 414 ALR 635; Lysaght Building Solutions Pty Ltd v Blanalko Pty Ltd (2013) 42 VR 27, referred to.

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Counsel
Applicants:		In person
Respondent/s:		Mr R Kornhauser
Solicitors
Applicants:	--
Respondent/s:	Victorian Government Solicitor

BEACH JA
KENNEDY JA:

In October 2023 the applicant, a self-represented litigant, brought a civil proceeding against the respondent in the County Court. He alleged, inter alia, that Victorian police had been negligent in relation to the prosecution of two charges against him. The charges alleged that he had contravened two personal safety intervention orders (‘PSIO’) under the Personal Safety Intervention Orders Act 2010. At the time of issuing the civil proceeding those charges had been heard and determined in the Magistrates’ Court, where the applicant had pleaded guilty to one of the charges.[1] The Magistrate adjourned the matter without conviction subject to the applicant’s undertaking to be of good behaviour. The other charge was struck out.
[1]The applicant has also issued a separate proceeding challenging the conduct of his legal representatives in respect of his guilty plea. This matter is dealt with in a separate judgment of this court also delivered this day: Shari v Marshall Jovanovska Ralph Criminal Lawyers [2025] VSCA 54.
By summons dated 11 April 2024 issued in the civil proceeding, the respondent sought orders that summary judgment be entered in its favour; alternatively that the proceeding be dismissed or stayed as an abuse of process; alternatively that the applicant’s pleading be struck out.
On 18 June 2024, the judge ruled that the applicant’s proceeding be dismissed, and delivered reasons for that ruling.[2] Orders to that effect were subsequently made.
[2]Shari v State of Victoria (Ruling) [2024] VCC 815 (‘Reasons’).
The applicant now applies for leave to appeal from the orders made by the judge. His proposed grounds are as follows:
(a)The judge erred in law by relying on cases that were irrelevant to the applicant’s circumstances. Specifically, the judge referenced Cabassi v Vila (‘Cabassi’),[3] a civil case unrelated to the applicant’s criminal matter, and Lysaght Building Solutions Pty Ltd v Blanalko Pty Ltd (‘Lysaght’),[4] a civil case focused on summary judgments, which has no bearing on the issues of racial bias, police negligence, or duty of care. This misapplication of case law resulted in an erroneous decision (proposed ground one).
(b)The judge erred by failing to properly consider or address the evidence of racial bias and disproportionate treatment in sentencing. The applicant raised the issue of receiving harsher treatment than others facing more serious offences, suggesting racial bias played a role in the outcome. The failure to engage with this issue constitutes a legal error (proposed ground two).
(c)The judge erred in law by not properly considering the admitted failure of Officer Webster to investigate the applicant’s case before laying charges. Officer Webster testified under oath that no investigation was conducted prior to the charges being brought. This failure of due diligence, which aligns with the principles set forth in Beckett v New South Wales (‘Beckett’),[5] was not adequately addressed by the court, resulting in a miscarriage of justice (proposed ground three).
(d)The judge erred by failing to recognise the heightened duty of care owed to the applicant as a person with a disability. Victoria Police, including Officer Webster, knew of the applicant’s vulnerable condition yet proceeded without conducting an appropriate investigation. The court did not properly address the applicant’s status as a vulnerable individual and the corresponding duty of care that was owed (proposed ground four).
(e)The judge failed to consider the disparity in treatment and sentencing between the applicant and other defendants charged with more serious offences. The applicant’s case was handled disproportionately, and this was not properly addressed by the court, resulting in an unfair outcome (proposed ground five).

Background[6]

[3]Cabassi v Vila (1940) 64 CLR 130 (‘Cabassi’).

[4]Consistent with the judge’s reference, the applicant cited Lysaght Building Solutions Pty Ltd v Blanalko Pty Ltd [2013] VSC 201 (‘Lysaght’), rather than the decision of the Court of Appeal in Lysaght Building Solutions Pty Ltd v Blanalko Pty Ltd (2013) 42 VR 27; [2013] VSCA 158 (‘Lysaght (Appeal)’).

[5]Beckett v New South Wales (2013) 248 CLR 432; [2013] HCA 17 (‘Beckett’). The applicant cited this as ‘Beckett v NSW Police [2015] HCA 38’ in his Application for Leave to Appeal. We have presumed this was intended to be a reference to Beckett v New South Wales (2013) 248 CLR 432; [2013] HCA 17, which was concerned with the tort of malicious prosecution, rather than R v Beckett (2015) 256 CLR 305; [2015] HCA 38, which was concerned with the offence of intention to pervert the course of justice.

[6]This background is based on the Reasons, [12]–[22].

On 3 February 2022, the applicant was made the subject of an interim PSIO. The order was made in respect of his former co-worker as the ‘protected person’. The order prohibited him from contacting the previous, current or future workplaces of that person.
On 16 June 2022, the applicant sent an email to the Alfred Hospital (‘the Alfred email’), said to be the protected person’s employer, which read:
Alfred Health is part of Australia's public healthcare system and offers hospital care and uses government funding.
However, I tried to warn you about the conduct of one your employee, which is my legal and moral right and I did nothing wrong, the person involved subsequently tried to issue a avo against me, which I am going to do defend. However, what I cannot understand why is this individual using the hospital lawyer, when this is a personal matter , the lawyer used is a hospital lawyer paid by public funds , this is a wrong use of tax funds. I have to defend myself.
Why should this person get a tax funded lawyer. Unless this is addressed. I will file a case with the Auditor-general and ombudsman. This is a wrong use of tax funds.
On 18 July 2022, the applicant was made subject to a final PSIO which he did not contest. That order was made in relation to the same protected person and also prohibited him from contacting the previous, current or future workplaces of that person.
On 26 September 2022, an email purporting to be sent on behalf of the applicant was sent to the Alfred Hospital by a Stephen Brooks (‘the Brooks email’). For present purposes, it is unnecessary to set out the detail of that email.
On 11 November 2023 the applicant was charged with:
(a)contravening the interim PSIO, by sending the Alfred email (charge one); and
(b)contravening the final PSIO, by getting another person to send the Brooks email (charge two).
The informant in respect of the two charges was Constable Webster.
On 13 June 2023, the charges were heard in the Magistrates’ Court. The applicant, who was then represented by a lawyer, pleaded guilty to charge one and was made subject to an adjourned undertaking until 16 July 2027, without conviction. Charge two was struck out and marked withdrawn.
We were advised by the respondent that the applicant lodged an appeal against his conviction and sentence to the County Court subsequent to the initiation of the civil proceeding before the judge. However, the appeal had not been heard and determined prior to the hearing or determination of the respondent’s application. As we have already said, that latter determination was made on 18 June 2024.[7]
[7]As recorded in recital A of ‘other matters’ in the orders later made by the judge on 13 September 2024, giving effect to her earlier determination. Recital A records that on 18 June 2024, the judge ‘ruled that [the applicant’s] proceeding was dismissed’.
The applicant was ultimately successful in obtaining an order that the charges be dismissed in the County Court. The County Court did not make that order until 6 August 2024.

Allegations in pleadings

At the time of the judge’s hearing and determination the applicant relied upon the matters pleaded in an amended statement of claim dated 6 March 2024 (‘ASOC’). In that pleading he described issues he experienced with a former co-worker during the time that he was employed as a social worker in a hotel quarantine facility during the COVID-19 pandemic. He alleged that he was wrongfully dismissed as a result of her conduct — which included bullying and abuse — but that he reached a confidential settlement in relation to this dismissal.
The ASOC alleged that the former co-worker subsequently obtained work at the Alfred Hospital and applied for the PSIOs against him, which formed the basis for the two charges.
The ASOC appears to suggest (though it is not clear) that the applicant subsequently engaged in litigation which involved the Alfred Hospital. He alleged that a lawyer at the Alfred Hospital, Stephen Taffe, contacted him asking him to send some documents that he was unable to access from the court files. The applicant alleged that some 20 to 30 emails were sent to the Alfred Hospital in response to Mr Taffe’s request.
In relation to Constable Webster, the judge helpfully summarised the allegations in the ASOC as follows:
(t)Constable Mark Webster committed negligence, misconduct and perjury;
(u)That negligence and misconduct caused proceedings to be initiated in the Magistrates’ Court against the applicant for breach of a personal safety order;
(v)Constable Webster conducted an interview with the [applicant] about six months prior to the hearing, during which he refused the [applicant]’s request to consult a lawyer;
(w)Constable Webster failed to adhere to proper procedures and standards;
(x)Constable Webster submitted false evidence, including emails which were used to frame the [applicant];
(y)The [Alfred] email was related to forty pages of documents previously provided to The Alfred Hospital. This was a legitimate complaint about the lawyer’s conduct, as he was abusing taxpayers’ funds, and should not have been misconstrued as evidence against the [applicant];
(z)Constable Webster knew the [Brooks] email to be false, as the [applicant] never authorised anyone to send any email pertaining to the matter at hand;
(aa)Constable Webster failed to conduct a thorough investigation into the allegations made against the [applicant];
(bb)Proceedings against the applicant demonstrate negligence, as outlined in s21 of the Criminal Code Act 2002;
(cc)Constable Webster’s failure to conduct an investigation, submission of false evidence, and attempt to manipulate the proceedings, are examples of negligence;
(dd)Constable Webster engaged in an abuse of legal process by attempting to frame and manipulate the proceedings;
(ee)Constable Webster’s conduct amounted to perjury;
(ff)Constable Webster’s actions have had severe repercussions on the [applicant]’s life, particularly in terms of employment. Due to the presence of this false accusation on his criminal record, the [applicant] has encountered significant difficulty securing employment;
(gg)On 16 November 2023, the [applicant] received a letter from Tania Gallagher, Acting Superintendent Chief of Staff, saying that his perjury complaint had been forwarded to a different department;
(hh)The [applicant] has doubts that his complaint was forwarded to the appropriate department. This raises concerns regarding the handling of his complaint and the integrity of the process. The [applicant] prays for relief in this matter, seeking compensation for all the suffering it has inflicted on him;
(ii)In seeking relief, the [applicant] hopes to find some form of redress for the injustices he has experienced;
(jj)It is important that Constable Webster be held accountable for his negligence, defamation, and perjury for the unfounded accusation on his criminal record, and that the [applicant] receive appropriate compensation for the damages incurred, including loss of employment opportunities and emotional distress.[8]
[8]Reasons, [3].
As correctly identified by the judge, the ASOC therefore mentions negligence, defamation, abuse of legal process, misconduct and perjury.[9]
[9]Reasons, [4].

Judge’s reasons

After setting out the allegations made in the ASOC, the judge considered that, although various causes of actions were mentioned, including negligence, the necessary elements were not pleaded.[10] She also noted that there was no tort of perjury[11] or abuse of process. She found that the pleading disclosed no cause of action and should be struck out pursuant to r 23.02 of the County Court Civil Procedure Rules 2018.[12]
[10]Reasons, [4]–[5].
[11]Reasons, [8], citing Cabassi (1940) 64 CLR 130; Andrew Tettenborn (ed), Clerk & Lindsell on Torts (Sweet & Maxwell, 24^th ed, 2023) 15–78.
[12]Reasons, [9].
However, she observed that this did not dispose of the application as the respondent sought a judgment in its favour, or that the proceeding be dismissed. She therefore undertook an assessment of whether the applicant had an identifiable cause of action or whether the proceeding was an abuse of process.[13]
[13]Reasons, [10]–[11].
The judge set out the submissions of the parties. She noted that the respondent’s submissions included that the proceeding was an abuse of process because it amounted to an impermissible collateral attack on the outcome in the Magistrates’ Court proceeding.[14] Alternatively, that it had no prospects of success. She noted that the applicant’s submissions included an allegation that the police owed him a duty of care to investigate his complaints about his former co-worker, and that if such an investigation had been made, then the interim PSIO would not have been granted. Further, that Constable Webster knew that the Brooks email was ‘fake’, which email was not authorised by the applicant.
[14]Reasons, [25]–[28], citing UBS AG v Tyne (2018) 265 CLR 77, 83 [1] (Kiefel CJ, Bell and Keane JJ); [2018] HCA 45 (‘Tyne’).
The judge then turned to whether the claim was an abuse of process. She indicated that she had explained to the applicant during the hearing of the application that the occasion for him to ventilate his complaint about the charges was in the Magistrates’ Court. Further, that if he wanted to challenge the validity of the Magistrates’ Court decision he could appeal that decision (a step which she understood he had now taken). He could not launch a ‘collateral attack’ through a civil claim. Nor could he seek to challenge the PSIO orders in the civil claim. She thereby found that the proceeding was an abuse of process and must be dismissed.[15]
[15]Reasons, [33]–[42], citing GLJ v The Trustees of the Roman Catholic Church for the Diocese of Lismore (2023) 414 ALR 635, 646 [26] (Kiefel CJ, Gageler and Jagot JJ); [2023] HCA 32 (‘GLJ’).
She next turned to the application for summary judgment in the alternative. With respect to the applicant’s principal claim of negligence, the judge found that, even if the applicant could establish that he was owed a positive duty by the police to investigate the complaints he made against his former co-worker, his claim still had no real prospects of success.[16] The judge observed that it was unclear what additional investigation the applicant said Constable Webster should have undertaken prior to charging him, but, on the basis of his submissions, it was likely an investigation of the applicant’s complaints about his former co-worker.[17]
[16]Reasons, [50].
[17]Reasons, [63].
The judge found that the duty and breach of that duty alleged had no causal connection with the grant of the interim PSIO, nor with the fact that he was charged with a breach of that order. The judge found that, even if the police had investigated his complaints against his former co-worker, there was no causal connection between that investigation and the harm he claimed. That harm arose from the obtaining of the two PSIOs; that he was charged with a breach of the interim PSIO; and that he pleaded guilty to that breach.[18]
[18]Reasons, [64]–[65].
With respect to the applicant’s complaint that he was refused a lawyer during his police interview, the judge found that the applicant did not identify how this was causally related to the harm he says he suffered. The judge observed that the interview did not record any request for a lawyer, but found that, even if he was found to have requested, and been denied, a lawyer, there was no causal connection to the harm he claimed in circumstances where he had a lawyer at the breach hearing and pleaded guilty.[19]
[19]Reasons, [67].
The judge also considered the applicant’s complaints that Constable Webster deliberately charged him with a breach based on a fake email. She noted that this appeared to be claim of misfeasance in public office, or a claim of malicious prosecution, but found that he pleaded neither claim.[20] The judge also found that, even if such claims were pleaded, they had no real prospect of success. The charge based on the Brooks email was withdrawn and there was no evidence that it was a fake email. There was no real prospect that the applicant would be able to establish the many links to succeed on such a claim which would require the court to accept that there was a conspiracy involving the former co-worker to concoct a fake email; that Constable Webster knew the email was fake and still relied upon it to charge the applicant; and that the charge was brought to cause mental stress and exhaustion so as to induce him to plead guilty to another charge.[21]
[20]Reasons, [68].
[21]Reasons, [69]–[71].
Finally, the judge considered whether to exercise the court’s discretionary power to allow Mr Shari’s claim to proceed to trial.[22] She noted that this proceeding was not the appropriate forum for the applicant to ventilate concerns about the alleged ‘perjury’ of the former co-worker, or the alleged incorrect legal advice. Having considered the transcript, she also rejected his submission that the Magistrate was motivated by prejudice, bias or racism. She concluded that the claim was not an investigation into charging practices, but turned on a narrow set of facts in relation to an uncontested PSIO and a plea of guilty to a breach. She ultimately was not satisfied that it was in the interests of justice to allow the proceeding to proceed, nor that a full hearing on the merits was appropriate.[23]
[22]Civil Procedure Act 2010, s 64.
[23]Reasons, [72]–[78].

Accordingly, she determined that summary judgment should be entered, granted the respondent’s application, and ruled that the applicant’s proceeding be dismissed.[24]
[24]Reasons, [79]–[80]; recital A of orders of 13 September 2024.

Applicant’s submissions

In respect of proposed grounds one, two and five,[25] the applicant submitted that the judge failed to properly consider evidence of racial bias and disproportionality in sentencing. He challenged the judge’s reference to Cabassi,[26] which was said to be irrelevant to the criminal proceeding, as well as her reliance on Lysaght.[27]
[25]We have endeavoured to relate the submissions to the proposed grounds as framed, notwithstanding that the applicant did not always clearly relate his submissions to the particular grounds and purported to only address proposed grounds one to three. A further written submission dated 8 November 2024 and filed on 9 November is also referred to below at [55].
[26]Cabassi (1940) 64 CLR 130.
[27]Lysaght [2013] VSC 201.
In respect of proposed ground three, the applicant submitted that the judgment did not address an admission said to be made by Constable Webster that no investigation was conducted prior to laying the charges. He criticised the judge’s references to UBS AG v Tyne (‘Tyne’)[28] and Smith v Victoria (‘Smith’),[29] submitting that they related to corporate law and tort liability, respectively. He submitted that this case aligns more closely with the principles in Beckett.[30]
[28]Tyne (2018) 265 CLR 77; [2018] HCA 45. As already indicated, this was cited by the respondent in relation to the circumstances in which there is an abuse of process: see above [21].
[29]Smith v Victoria (2018) 56 VR 322; [2018] VSC 475 (‘Smith’). This decision appears to be have been cited by the applicant himself to support the existence of a duty of care.
[30]Beckett (2013) 248 CLR 432; [2013] HCA 17.
Finally, in respect of proposed ground four, the applicant submitted that the judge erred in failing to recognise the higher duty of care owed by the police to him as a person with a disability. He submitted that a heightened duty of care is owed in cases involving vulnerable individuals.[31]
[31]Citing GLJ (2023) 414 ALR 635; [2023] HCA 32.
By email dated 12 March 2025, the applicant provided a further document, entitled ‘Oral Argument for Kevin Shari v Marshall Jovanovska Ralph Criminal Lawyers’. He reiterated similar complaints he had already made about the conduct of Constable Webster, including that he behaved in a racist way. He also submitted that one of the most egregious aspects of Constable Webster’s conduct was the denial of his right to speak to a lawyer. He emphasised that ‘perhaps the most significant failure’ was his admission that he did not conduct an adequate investigation. His submission was that this failure to investigate, especially in light of his knowledge of the applicant’s disability, suggested an intentional neglect of duty. The fact that the applicant was ultimately found not guilty underscored the inadequacy of the investigation.
Finally, in a further document provided by email dated 24 March 2025, the applicant focused on his complaint that Constable Webster had charged him without conducting any prior investigation. He said that the Constable admitted this when the matter was on appeal before Judge Rozen in the County Court. He also reiterated that Constable Webster had made racist comments and refused to allow him to speak to a lawyer in circumstances where he was under a disability. He cited an array of cases in support of his submissions.

Transcript of proceedings in the County Court

Given that both parties referred to Constable Webster’s evidence on appeal, we requested a copy of the transcript of the County Court proceedings during the course of the hearing of the application before us. It was ultimately provided by the respondent.
Having read that transcript it appears that Constable Webster made some admissions under cross-examination by the applicant. These include that he did not check with the Alfred Hospital whether the Alfred email was ‘a continuation of other emails’, nor did he contact the Alfred Hospital ‘in relation to the matter’. He also did not email Stephen Brooks to ask him if he had sent the Brooks email.
As highlighted by the applicant, the applicant was also successful in his appeal before Judge Rozen. Although we do not have his ruling, the judge appeared to be concerned about two issues in respect of the prosecution case. First, whether the emails were really ‘in relation to’ the protected person so as to be prohibited by the PSIO orders. Additionally, in the case of the Brooks email, whether the applicant was the person who actually sent the email.

Analysis

Proposed ground three

It is convenient to first consider proposed ground three — which appeared to be the focus of the applicant’s complaints — before dealing with the other proposed grounds, together.
As a preliminary point, we did not generally find the decisions cited by the applicant to be of assistance. Insofar as Beckett is concerned,[32] the High Court found that the termination of proceedings by entry of a nolle prosequi was sufficient to establish the element of the tort of malicious prosecution that requires prosecution proceedings to have terminated in a plaintiff’s favour. However, as we highlight below, the case does not assist the applicant as, at the time of the judge’s determination, the criminal proceedings had not been terminated in favour of the applicant since the decision of the Magistrate had not been overturned.
[32]Beckett (2013) 248 CLR 432; [2013] HCA 17.
The applicant’s complaints about Constable Webster’s handling of the prosecution case were wide ranging. However, doing the best we can, the high point of his case appeared to be that because Constable Webster failed to conduct a proper investigation, the Magistrate’s Court reached a wrongful result (involving a wrongful finding of guilt), which has caused him loss.
There are a number of difficulties with this claim, including:
•notwithstanding the views of John Dixon J in Smith,[33] we consider that it would be highly unlikely that any duty of care would be imposed in this case. Any such duty would be inconsistent with a police officer’s duty to properly and effectively discharge his responsibilities in investigating whether a charge ought to be laid;[34]
•a claim in malicious prosecution might be available. However, while the original statement of claim included reference to malicious prosecution (at [49]), this paragraph was deleted in the ASOC. The judge was therefore correct to find that no such claim was pleaded;
•it is unclear to us that the result in the Magistrates’ Court was overturned by reason of any failure to investigate. Rather, the result appears to have turned on a simple process of construction of the emails and the PSIOs;
•the applicant did not make clear to the judge the basis for his allegation that there was a failure to investigate, which appears to have developed following the hearing of the appeal in the County Court. Rather, before the judge he appeared to focus on a failure to investigate his complaints about his co-worker. In this context, the judge found there to be no causal connection with the harm he suffered, which finding was not challenged by the applicant.
[33]Smith (2018) 56 VR 322, 373 [170]; [2018] VSC 475.
[34]Sullivan v Moody (2001) 207 CLR 562, 581 [55] (Gleeson CJ, Gaudron, McHugh, Hayne and Callinan JJ); [2001] HCA 59.
Moreover, even if these difficulties could be overcome, there is a more fundamental problem with the applicant’s case. This is because, whatever tort is relied upon, the applicant’s harm is said to flow from the wrongful finding of guilt by the Magistrates’ Court, since it is that result which led to his claimed loss of employment opportunities. In order to maintain such a claim, he must therefore show that the Magistrates’ Court result was incorrect.
This difficulty is highlighted with reference to two of the main torts identified. Hence, the elements of the tort of malicious prosecution include that the criminal proceeding was terminated in the applicant’s favour.[35] In negligence he would also have to establish the counterfactual that if the investigation had been properly conducted then the (wrongful) finding of guilt would never have been made because the charges would never have been laid.
[35]Beckett (2013) 248 CLR 432, 438 [4] (French CJ, Hayne, Crennan, Kiefel and Bell JJ).
The applicant’s claim was therefore premised on the proposition that the applicant was wrongly found guilty. At the time of the hearing before the judge, however, the findings of the Magistrates’ Court remained undisturbed. In such circumstances, we agree with the judge that the applicant was effectively seeking to make a collateral attack on the decision of the Magistrates’ Court by way of his civil proceeding.
As explained in the decision of Soo v Victoria Legal Aid (‘Soo’),[36] such a collateral attack was clearly impermissible.[37] Chief Justice Gleeson, Gummow, Hayne and Heydon JJ also stated in D’Orta-Ekenaike v Victoria Legal Aid:[38]
As Deane and Gaudron JJ pointed out in Rogers, principles of finality find reflection not only in doctrines of preclusion intended to protect the position of an individual (the doctrines of res judicata, issue estoppel, and so-called ‘Anshun estoppel’) but also in the public need ‘for decisions of the courts, unless set aside or quashed, to be accepted as incontrovertibly correct’. It is this public need which must underpin the proposition that a conviction cannot be challenged in subsequent proceedings. But if that is right (and it is) neither should an acquittal be open to challenge.[39]
[36]Soo v Victoria Legal Aid [2023] VSC 289 (‘Soo’), affd Soo v Victoria Legal Aid [2023] VSCA 330 (‘Soo (Appeal)’).
[37]See Soo [2023] VSC 289, [18]–[19] (Gorton J).
[38]D’Orta-Ekenaike v Victoria Legal Aid (2005) 223 CLR 1; [2005] HCA 12.
[39]Ibid 29 [77] (citations omitted).
Given the applicant’s proceeding involved an impermissible collateral attack upon the outcome in the Magistrates’ Court, the judge was correct to dismiss it as an abuse of process. Having correctly identified the proceeding as an abuse of process, she was also bound to summarily put a halt to it — there being no discretion to permit the continuation of a proceeding that is an abuse of process.[40]
[40]R v Carroll (2002) 213 CLR 635, 657 [73] (Gaudron and Gummow JJ); [2002] HCA 55; Batistatos v Roads and Traffic Authority (NSW) (2006) 226 CLR 256, 264 [7] (Gleeson CJ, Gummow, Hayne and Crennan JJ); [2006] HCA 27; GLJ (2023) 414 ALR 635, 646 [26] (Kiefel CJ, Gageler and Jagot JJ); [2023] HCA 32.
We note that, notwithstanding the judge’s conclusion that the proceeding was an abuse of process, the form of order made by the judge included that summary judgment be entered for the respondent.[41] However, for similar reasons as in Soo,[42] we do not consider this to be of consequence. Thus, the liability of (if not the necessity for) the proceeding to be dismissed as an abuse of process also meant that the proceeding had no real prospects of success, and was thus liable to be dismissed (if not required to be dismissed) for that reason as well.[43]
[41]The form of para 1 of the orders made on 13 September 2024 was as follows: ‘Pursuant to sections 62 and 63 of the Civil Procedure Act 2010 (Vic), summary judgment is entered for the defendant.’
[42]Soo [2023] VSC 289, [20](b) (Gorton J); Soo (Appeal) [2023] VSCA 330, [13] (Beach JA).
[43]See Soo (Appeal) [2023] VSCA 330, [13] (Beach JA). See also para 5 of the orders made on 13 September 2024 where the judge otherwise dismissed the proceeding.
Nothing we say should be taken as any recommendation that the applicant should now institute some claim based on malicious prosecution, or otherwise, in light of the successful appeal. There remain a number of issues to grapple with in respect of any such claim, some of which we have already identified.
Suffice to say that his proceeding as at the time it was issued, and considered by the judge, was misconceived.
Proposed ground three must be rejected.

Other proposed grounds

The other proposed grounds may be more readily dismissed.
In relation to proposed ground one, the judge did not misapply the case law in circumstances where she was considering a civil proceeding. In particular, the decision of Lysaght Building Solutions Pty Ltd v Blanalko Pty Ltd[44] was correctly relied upon given the respondent applied for summary judgment.[45] The judge was also correct to cite Cabassi[46] for the proposition that there is no tort of perjury.[47]
[44]Lysaght (Appeal) (2013) 42 VR 27; [2013] VSCA 158.
[45]The judge appears to give the incorrect citation of Lysaght [2013] VSC 201, but correctly recites the principles identified by the Court of Appeal in Lysaght (Appeal) (2013) 42 VR 27, 40 [35] (Warren CJ and Nettle JA); [2013] VSCA 158: Reasons, [24].
[46]Cabassi (1940) 64 CLR 130.
[47]Reasons, [7].
Proposed grounds two and five are misconceived as they appear to make complaints about how the applicant was sentenced by the Magistrate. In any event, the judge expressly made reference to, and considered, the complaints of racism insofar as they were relevant.[48]
[48]Reasons, [31](a), [31](p), [31](q), [32], [51], [76]–[77].
Proposed ground four alleges that there was some failure to recognise a ‘higher duty of care’ owed to a person with a disability. However, even if there was merit in such a complaint, as already explained, the critical basis for the judge’s decision was that the proceeding should be dismissed for being an abuse of process. The existence of a duty of care did not arise in that context. Nor did the scope of any such duty. In any event, insofar as the judge went further and considered the negligence claim, she found that there was a duty of care, but that it must fail based on causation considerations. No challenge was made to this finding.
Proposed ground four is therefore also without merit.

A final matter

In one of the written submissions filed by the applicant in this Court,[49] the applicant said that he ‘intend[ed] to present fresh evidence from my County Court proceedings showing exoneration, which invalidates the rationale behind the original charges’. Notwithstanding the foreshadowing of that intention, the applicant in fact made no application for any fresh evidence to be admitted in this Court.
[49]A three page written submission dated 8 November 2024, which was filed on 9 November 2024.
Nevertheless, we have given consideration to whether the applicant’s application for leave to appeal should be granted and the appeal allowed in part for the purpose of permitting the application to make an appropriate application to amend his ASOC to plead a cause of action in malicious prosecution, on the basis that the applicant can now establish one of the elements of that cause of action which he could not establish at the time the judge made her ruling — namely that the criminal proceeding commenced against him was ultimately terminated in his favour.
Ultimately, we have concluded that we should not take this course. The proceeding at first instance was an abuse of process because it sought to make a collateral attack on the decision of the magistrate. While the evidence of the applicant’s acquittal in the County Court may constitute fresh evidence, as a matter of discretion, we do not think that it is appropriate to take any step which would permit the applicant to make an application to amend his pleadings to plead a cause of action that, on any view, cannot have arisen prior to his acquittal in the County Court, and only arose after the judge’s determination. The proceeding dismissed by the judge is, and always was, an abuse of process which was correctly brought to an end by the judge.
Moreover, the applicant has not formulated a pleading in support of any claim he might have for malicious prosecution. Before doing so, consideration would need to be given to the identity of the defendant (or defendants) and the precise basis upon which any such claim might be made. In any event, these are matters the applicant may give consideration to in deciding whether or not to commence a fresh proceeding in which he makes a coherent claim of malicious prosecution. That said, we repeat what we have said at paragraph [47] above that nothing said in this judgment should be taken as any recommendation that the applicant should now institute some claim based on malicious prosecution, or otherwise, in the light of his successful appeal in the County Court.

Conclusion

None of the applicant’s proposed grounds of appeal have any real prospect of success. Accordingly, the application for leave to appeal must be refused.

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[2025] VSCA 55

3 April 2025