Thorpe v Magistrates' Court of Victoria
[2025] VSCA 220
•12 September 2025
| ?? COURT OF APPEAL |
| S EAPCI 2025 0023 |
| UNCLE ROBBIE THORPE | Applicant |
| v | |
| MAGISTRATES’ COURT OF VICTORIA | First Respondent |
| and | |
| ATTORNEY‑GENERAL OF VICTORIA | Second Respondent |
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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 220 |
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PRACTICE AND PROCEDURE – Applications for leave to intervene in proceeding – Applicants failed to file submissions that they proposed to make if application to intervene granted – Court not satisfied that applicants’ contributions would assist in resolution of issues to be determined on appeal – Court not satisfied that participation of intervenors would not unreasonably interfere with conduct of proceeding – Applications for leave to intervene refused.
Supreme Court (General Civil Procedure) Rules 2015, r 64.10.
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| Counsel | |||
| Applicant: | Not applicable | ||
| Respondents: | Not applicable | ||
Solicitors | |||
| Applicant: | Not applicable | ||
| Respondents: | Not applicable | ||
EMERTON P
WALKER JA:
In October 2023, Uncle Robbie Thorpe[1] sought to file a charge sheet and summons in the Magistrates’ Court of Victoria naming King Charles III as the accused and alleging that he had committed ‘continuing acts of genocide … against First Peoples’. The Magistrates’ Court refused to issue the summons and did not initiate a proceeding.
[1]The proceeding was commenced in the name ‘Uncle Robbie Thorpe’. In these reasons we will use that name to describe Mr Thorpe because we understand that is how he prefers to be addressed. No familiarity with, or disrespect to, him is intended by that usage.
By originating motion filed in the Trial Division on 7 March 2024, Uncle Robbie Thorpe sought judicial review of the Magistrates’ Court decision. A trial was conducted on 19 July 2024 and on 5 February 2025 Richards J handed down her judgment. Her Honour held that the charge sheet did not disclose an offence known to law and that the Magistrates’ Court was correct to refuse to issue the proposed proceeding.[2] Uncle Robbie Thorpe has filed an application for leave to appeal Richards J’s decision (the ‘principal proceeding’).
[2]Thorpe v Magistrates’ Court of Victoria [2025] VSC 22.
Eight persons have now filed applications for leave to intervene in Uncle Robbie Thorpe’s application for leave to appeal, pursuant to r 64.10 of the Supreme Court (General Civil Procedure) Rules 2015 (the ‘Rules’).
For the reasons that follow, we will refuse leave to the eight applicants to intervene in the principal proceeding.
The relevant provision of the Rules
A person who is not a party to a proceeding has no entitlement to appear and/or make submissions in relation to that proceeding. However, such a person may seek, and may by granted, leave to intervene in an application before this Court. It is convenient to set out r 64.10, which governs such applications:
Application for leave to intervene
(1)A person who was not a party to the proceeding or matter in which the decision sought to be appealed or under appeal was made or a person who does not have an independent right to appear or intervene, may apply to the Court of Appeal for leave to intervene in an application for leave to appeal or an appeal.
(2)An application for leave to intervene is made by filing with the Registrar and serving—
(a)an application in accordance with Form 64B;
(b)an affidavit in support in accordance with any applicable practice note; and
(c)any additional document required by any applicable practice note .
(3)The applicant must satisfy the Court of Appeal—
(a)that the applicant’s contribution as an intervener will be useful and different from the contribution of the parties;
(b)that the intervention would not unreasonably interfere with the conduct of the application or appeal; and
(c)of any other matter that the Court of Appeal considers relevant.
(4)When giving leave to intervene, the Court of Appeal may specify—
(a)the form of assistance to be given by the intervener;
(b)the manner of participation of the intervener;
(c)the matters that the intervener may address;
(d)whether the intervener's submissions are to be oral, in writing, or both; and
(e)whether any undertaking as to costs should be given, and if so, in what form.
As is apparent from the terms of r 64.10, a significant issue in any application for leave to intervene is the nature of the submissions that the proposed intervenor wishes to make in relation to the proceeding in which they wish to intervene. It is thus necessary to set out, in summary form, the nature of Uncle Robbie Thorpe’s application for leave to appeal.
Uncle Robbie Thorpe’s grounds of appeal
As noted above, Richards J held that the charge sheet Uncle Robbie Thorpe had sought to file in the Magistrates’ Court, containing allegations of genocide against King Charles III, did not disclose an offence known to law and that the Magistrates’ Court was correct to refuse to issue the proposed proceeding.
Uncle Robbie Thorpe’s proposed grounds of appeal from that decision are, in summary, as follows:
(a)The judge erred in failing to properly consider all matters set out in Uncle Robbie Thorpe’s notice of a constitutional matter served on all Attorneys-General (ground 1).
(b)The judge erred in failing to go on a view to Camp Sovereignty (ground 2).
(c)The judge erred in failing to attend a smoking ceremony conducted on the steps of the court building (ground 3).
(d)The judge erred in failing to state in her judgment that Uncle Robbie Thorpe addressed the Court while robed in possum skins with spears, a fighting shield and a boomerang on the bar table and with two warriors with spears at the doors of the courtroom (ground 4).
(e)The judge erred in failing to refer Uncle Robbie Thorpe’s testimony of ongoing genocide to the State and Commonwealth Attorneys-General and order that they appear in person before the Court, and in ‘failing to express horror at the continuing Aboriginal genocide’ (ground 5).
(f)The judge erred in failing to order that the Attorney-General of the Commonwealth be joined as third defendant (ground 6).
(g)The judge erred in failing to make the following five orders (ground 7):
(i)an order for the appointment of certain named individuals as amicus curiae;
(ii)an order that Richards J be disqualified from the conduct of the proceedings;
(iii)and order that Ferguson CJ have conduct of the proceeding;
(iv)an order that a bench of five Aboriginal judicial officers hear the judicial review application and associated applications;
(v)an order that, if there are not sufficient Aboriginal judicial officers to constitute a bench of five, then Ferguson CJ write to the State and Commonwealth Attorneys-General to request the appointment of sufficient judicial officers.
(h)The judge erred in failing to apply Aboriginal law ‘against genocidal and ecocidal acts’ (ground 8).
(i)The judge erred in failing to order that the Victorian Government Solicitor email Uncle Robbie Thorpe ‘with information about the date that the Aboriginal “acknowledgement” in their email … first became an item on VGSO emails’ (ground 9).
(j)The judge erred in failing to find that, as at 20 October 2024, genocide was a common law offence that allowed for private prosecution (ground 10).
(k)The judge erred ‘in failing to read’ div 268 of the Criminal Code Act 1995 (Cth) together with s 10 of the Racial Discrimination Act 1975 (Cth) such that the Attorney‑General’s fiat ‘is not required for Us as the only group who have suffered and continue to suffer genocide on this continent’ (ground 11).
As is apparent, many of the grounds of appeal concern procedural steps that the judge failed to take in the course of the proceedings.
Consideration
By reason of r 64.10(3), a person who seeks leave to intervene in a proceeding must satisfy the Court that:
(1)their contribution as an intervener will be useful and different from the contribution of the parties; and
(b)their intervention would not unreasonably interfere with the conduct of the application or appeal.
In the present case we are not satisfied of either proposition in relation to any of the applications for leave to intervene.
Each application is in substantially similar terms, although the supporting material varies. It is appropriate to assess one application initially, by way of example, before turning to the rest of the applications.
Oongi Barb Flick’s application for leave to intervene
The application by Oongi Barb Flick seeks leave to intervene ‘to appear in person at the bar table and address any matter (unless the court extemporaneously withdraws leave to address certain matters) and make submissions both oral and in writing with no undertaking as to costs’. The application sets out the grounds as follows:
1. My contribution as an intervener will be useful and different from the contribution of the parties — and I have a direct interest in the proceedings because I and my People will purportedly under your law be bound by the court’s decision and I also have an indirect interest because my legal interests are substantially affected as are those of my People.
2. The intervention would not unreasonably interfere with the conduct of the application or appeal — in fact it would clearly assist with the conduct of the application (and appeal if granted).
3. Any other matter that the Court of Appeal considers relevant.
Oongi Barb Flick’s application attaches a document headed ‘Written Submissions’, which says as follows:
My written submissions are set out in my application … and my affidavit.
Oral submissions are more culturally appropriate and I will speak to the Court in person as is Our way.
The affidavit filed in support of the application for leave to intervene says as follows:
I, Oongi Barb Flick of Gomeroi/Yawallyi/Bigambul Nations, holder of Knowledge particularly women's knowledge and traditions passed down from my Great Grandmother and my responsibility to pass this on to future generations affirm:
1. I make this affidavit in support of my Form 64B application dated 29 July 2025 to intervene in this King Charles genocide case in the Court of Appeal of the Supreme Court of Victoria.
2. I know that Dr Aunty Alma Thorpe, Uncle Robbie Thorpe, Senator the Honourable Lidia Thorpe, Tjilpi Murray George, Puralia Meenamatta of Lutruwita, Keiran Stewart-Assheton, Derek Cameron Tipper and Desmond Blurton, Balladong/Yuid Nyungah all support my application to intervene as do all the other proposed intervenors preparing their applications.
3. I believe that my intervention would be broadly supported by Our community across this continent and seen as essential.
4. One experience We all have in common is We have all experienced and continue to experience until you decide to stop your ongoing genocide against Us — your armed military invasion, your attempted occupation and destruction of Our Lands, your theft of Our Resources and your purported usurpation of Our Law, the ancient unchanging unchangeable law from this country.
The affidavit then attaches extracts from the following four documents, encompassing some 30 pages:
(a)Barbara Flick, ‘Colonisation and Decolonisation: An Aboriginal Experience’ in Playing the State, Australian Feminists Interventions, edited by Sophie Watson (1990);
(b)Barb Flick, ‘They Weren't Allowed In The Gate’, Australian Education Union Annual Federal Conference, January 2001;
(c)Oongi Barb Flick, ‘One Country, Two Laws: Challenges facing both Aboriginal people and the legal system as it exists today — a personal perspective and my family’s activism’, Carroll & O'Dea Lawyers Webinar Event, 5 July 2022; and
(d)Barbara Flick, ‘Spiritual Healing: Land and Health’, Healing our Spirit Worldwide Conference, Sydney, November 1994.
Ms Flick’s application and submissions do not address either the correctness of the decision below, or the grounds of appeal in Uncle Robbie Thorpe’s application for leave to appeal. Nor do the application, the submissions or the affidavit explain how the annexures to the affidavit are relevant to the correctness of the decision below or to the grounds of appeal.
In light of the above, Ms Flick has not satisfied us that her contribution as an intervenor would assist this Court in resolving the issues raised by the application for leave to appeal.
Nor has Ms Flick satisfied us that her participation as an intervenor would not unreasonably interfere with the conduct of the application or appeal. As noted above, she has provided the Court with relatively voluminous material without any submissions that demonstrate that the material is relevant to the issues raised by the application for leave to appeal. Thus, if the Court were to accept the application for leave to intervene, we would have to read and digest that material unassisted by any written submissions.
Furthermore, Ms Flick wishes to address the Court orally. Oral participation in the hearing is likely to extend the time required for the hearing and thus interfere with the conduct of the application for leave to appeal.
We note, for completeness, that Ms Flick’s assertion of an interest in the proceeding does not entitle her to intervene in the proceeding.
For these reasons, we would refuse Ms Flick’s application for leave to intervene.
The other applications for leave to intervene
For broadly the same reasons, we would refuse each of the other intervenors’ applications. Each of those applications seeks leave to intervene ‘to appear in person at the bar table and address any matter (unless the Court extemporaneously withdraws leave to address certain matters) and make submissions both oral and in writing with no undertaking as to costs’. Each application states, in summary that:
(a)the applicant’s contribution as an intervener will be useful and different from the contribution of the parties;
(b)in addition, the applicant has an interest in the proceedings; and
(c)the proposed intervention would not unreasonably interfere with the conduct of the application or appeal and would, rather, ‘assist with the conduct of the application (and appeal if granted)’.
Each application also attaches a document headed ‘Written Submissions’, which in each case says as follows:
My written submissions are set out in my application … and my affidavit.
Oral submissions are more culturally appropriate and I will speak to the Court in person as is Our way.
In light of these common features, we will address each application in summary form, noting, where appropriate, any departure from the common form, and noting the contents of the affidavit filed in support, which is different in each case.
Senator Lidia Thorpe’s application for leave to intervene
Senator Lidia’s Thorpe’s application varies slightly from the common form in that she asserts an interest in the proceeding on the basis that she and her ‘Electors’ will be bound by the Court’s decision and because the legal interests of her, her people and her ‘Electors’ would be substantially affected. The addition of references to Senator Thorpe’s Electors does not alter our analysis.
Senator Thorpe filed an affidavit of some six pages containing around 70 pages of annexures, and a one-page supplementary affidavit containing around 15 pages of annexures. Those annexures include various media reports, extracts from Hansard of the Commonwealth Parliament, bills introduced into the Commonwealth Parliament and the Australian Human Rights Commission’s ‘National Anti-Racism Framework’.
Senator Thorpe’s application and submissions do not address either the correctness of the decision below, or the issues to be determined on any appeal, should leave to appeal be granted. Nor do the application, the submissions or the affidavit explain how the annexures to the affidavit are relevant to the correctness of the decision below or to the grounds of appeal.
In light of the above, Senator Thorpe has not satisfied us that her contribution as an intervenor would assist this Court in resolving the issues raised by the application for leave to appeal.
Nor has Senator Thorpe satisfied us that her participation as an intervenor would not unreasonably interfere with the conduct of the application or appeal. As noted above, she has provided the Court with voluminous material without any submissions that demonstrate that the material is relevant to the issues raised by the application for leave to appeal. Thus, if the Court were to accept the application for leave to intervene, we would have to read and digest that material unassisted by any written submissions.
Furthermore, Senator Thorpe wishes to address the Court orally. Oral participation in the hearing is likely to extend the time required for the hearing and this would interfere with the conduct of the application for leave to appeal.
For these reasons, we would refuse Senator Thorpe’s application for leave to intervene.
Aunty Alma Thorpe’s application for leave to intervene
Aunty Alma Thorpe’s application varies somewhat from the common form, because she has also filed a separate application for leave to appeal which she ‘expect[s] will be heard together with this King Charles appeal’. On 12 June 2025, the Registry informed Uncle Robbie Thorpe that the Court does not intend to list Aunty Alma Thorpe’s application for leave to appeal at the same time as Uncle Robbie Thorpe’s application in the principal proceeding. The fact that Aunty Alma Thorpe is the first applicant in a separate proceeding does not alter our analysis.
Aunty Alma Thorpe has filed a two-page affidavit containing around 100 pages of annexures, and a two-page supplementary affidavit containing around 10 pages of annexures. Those annexures include a Victoria University report on Aunty Alma Thorpe’s ‘life and achievements upon the occasion of the awarding of [her] honorary degree’, her written witness statement and transcript of her oral testimony given to the Yoorrook Justice Commission, a report on forced assimilation and various documents sought to be filed in separate court proceedings.
Aunty Alma Thorpe’s application and submissions do not address either the correctness of the decision below, or the issues to be determined on any appeal, should leave to appeal be granted. Nor do the application, the submissions or the affidavit explain how the annexures to the affidavit are relevant to the correctness of the decision below or to the grounds of appeal.
In light of the above, Aunty Alma Thorpe has not satisfied us that her contribution as an intervenor would assist this Court in resolving the issues raised by the application for leave to appeal.
Nor has Aunty Alma Thorpe satisfied us that her participation as an intervenor would not unreasonably interfere with the conduct of the application or appeal. As noted above, she has provided the Court with voluminous material without any submissions that demonstrate that the material is relevant to the issues to be determined on appeal. Thus if the Court were to accept the application for leave to intervene, we would have to read and digest that material unassisted by any written submissions.
Furthermore, Aunty Alma Thorpe wishes to address the Court orally. Oral participation in the hearing is likely to extend the time required for the hearing and this would interfere with the conduct of the application for leave to appeal.
For these reasons, we would refuse Aunty Alma Thorpe’s application for leave to intervene.
Tjilpi Murray George’s application for leave to intervene
Tjilpi Murray George’s application is substantially in the common form. He filed an affidavit and supplementary affidavit, each two pages in length, and just over 10 pages of annexures to the supplementary affidavit. Those annexures include various photos of Tjilpi Murray George and others at Camp Sovereignty, a letter sent to the AMYAC Board of Directors and an extract of transcript of a YouTube video described as ‘Anangu Tjuta and the true Canvas Story’.
Mr George’s application and submissions do not address either the correctness of the decision below, or the grounds of appeal in Uncle Robbie Thorpe’s application for leave to appeal. Nor do his application, submissions or affidavit explain how the annexures to the affidavit are relevant to the correctness of the decision below or to the grounds of appeal.
In light of the above, Mr George has not satisfied us that his contribution as an intervenor would assist this Court in resolving the issues raised by the application for leave to appeal.
Nor has Mr George satisfied us that his participation as an intervenor would not unreasonably interfere with the conduct of the application or appeal. He has not provided the Court with any submissions that demonstrate that the material he has filed is relevant to the issues raised by the application for leave to appeal. Thus, if the Court were to accept the application for leave to intervene, we would have to read and digest that material unassisted by any written submissions.
Furthermore, Mr George wishes to address the Court orally. Oral participation in the hearing is likely to extend the time required for the hearing and this would interfere with the conduct of the application for leave to appeal.
For these reasons, we would refuse Mr George’s application for leave to intervene.
Puralia Meenamatta’s application for leave to intervene
Puralia Meenamatta’s application is substantially in the common form. He has filed an affidavit of some four pages, containing around 250 pages of annexures. Those annexures include various media reports, copies of Aboriginal passports, a journal article authored by Mr Meenamatta titled ‘Savage Nation — First Nations’ Philosophy and Sovereignty’ and Mr Meenamatta’s Master of History thesis titled ‘Learning to understand: My life story to pakana philosophy’. Mr Meenamatta deposes in his affidavit that ‘[i]t is universal cultural knowledge and understanding of the Aboriginal Peoples (First Nations) of this continent that the Law is in Country’.
Mr Meenamatta’s application and submissions do not address either the correctness of the decision below, or the issues to be determined on any appeal, should leave to appeal be granted. Nor does the material explain how the statements made in the affidavit and annexures to the affidavit are relevant to the correctness of the decision below or to the determination of the grounds of appeal.
In light of the above, Mr Meenamatta has not satisfied us that his contribution as an intervenor would assist this Court in resolving the issues to be determined on appeal.
Nor has Mr Meenamatta satisfied us that his participation as an intervenor would not unreasonably interfere with the conduct of the application or appeal. As noted above, he has provided the Court with voluminous material without any submissions that demonstrate that the material is relevant to the issues raised by the application for leave to appeal. Thus, if the Court were to accept the application for leave to intervene, we would have to read and digest that material unassisted by any written submissions.
Furthermore, Mr Meenamatta wishes to address the Court orally. Oral participation in the hearing is likely to extend the time required for the hearing and this would interfere with the conduct of the application for leave to appeal.
For these reasons, we would refuse Mr Meenamatta’s application for leave to intervene.
Keiran Stewart-Assheton’s application for leave to intervene
Keiran Stewart-Assheton’s application is substantially in the common form. He filed an affidavit and annexure of some eight pages. The annexure is a list of demands extracted from a website attributed to the ‘Black Peoples Union’.
Mr Stewart-Assheton’s application and submissions do not address either the correctness of the decision below, or the grounds of appeal in Uncle Robbie Thorpe’s application for leave to appeal. Nor do the application, the submissions or the affidavit explain how the annexure to the affidavit is relevant to the correctness of the decision below or to the grounds of appeal.
In light of the above, Mr Stewart-Assheton has not satisfied us that his contribution as an intervenor would assist this Court in resolving the issues raised by the application for leave to appeal.
Nor has Mr Stewart-Assheton satisfied us that his participation as an intervenor would not unreasonably interfere with the conduct of the application or appeal. He has not provided the Court with any submissions that demonstrate that the material filed is relevant to the issues raised by the application for leave to appeal. Thus, if the Court were to accept the application for leave to intervene, we would have to read and digest that material unassisted by any written submissions.
Furthermore, Mr Stewart-Assheton wishes to address the Court orally. Oral participation in the hearing is likely to extend the time required for the hearing and this would interfere with the conduct of the application for leave to appeal.
For these reasons, we would refuse Mr Stewart-Assheton’s application for leave to intervene.
Derek Cameron Tipper’s application for leave to intervene
Derek Cameron Tipper’s application is substantially in the common form. He filed an affidavit of some two pages, containing around 40 pages of annexures. Those annexures include various statements (one written only in French) relating to the rights of the Kanak Indigenous People in the Non-Self-Governing Territory of New Caledonia and Noumea, a letter authored by the ‘allied women of Kanaky’ titled ‘Letter to our sisters in the World March of Women and all over the world’, and various media reports from ‘Radio RATA’.
Mr Tipper’s application and submissions do not address either the correctness of the decision below, or the grounds of appeal in Uncle Robbie Thorpe’s application for leave to appeal. Nor do the application, the submissions or the affidavit explain how the annexures to the affidavit are relevant to the correctness of the decision below or to the grounds of appeal.
In light of the above, Mr Tipper has not satisfied us that his contribution as an intervenor would assist this Court in resolving the issues raised by the application for leave to appeal.
Nor has Mr Tipper satisfied us that his participation as an intervenor would not unreasonably interfere with the conduct of the application or appeal. He has not provided the Court with any submissions that demonstrate that the material filed is relevant to the issues raised by the application for leave to appeal. Thus, if the Court were to accept the application for leave to intervene, we would have to read and digest that material unassisted by any written submissions.
Furthermore, Mr Tipper wishes to address the Court orally. Oral participation in the hearing is likely to extend the time required for the hearing and this would interfere with the conduct of the application for leave to appeal.
For these reasons, we would refuse Mr Tipper’s application for leave to intervene.
Desmond Blurton’s application for leave to intervene
Desmond Blurton’s application is substantially in the common form. He filed an affidavit of some two pages with no annexures.
Mr Blurton’s application and submissions do not address either the correctness of the decision below, or the grounds of appeal in Uncle Robbie Thorpe’s application for leave to appeal.
Mr Blurton has not satisfied us that his contribution as an intervenor would assist this Court in resolving the issues raised by the application for leave to appeal. Nor has Mr Blurton satisfied us that his participation as an intervenor would not unreasonably interfere with the conduct of the application or appeal. Mr Blurton wishes to address the Court orally. Oral participation in the hearing is likely to extend the time required for the hearing and this would interfere with the conduct of the application for leave to appeal.
For these reasons, we would refuse Mr Blurton’s application for leave to intervene.
Conclusion
In summary, we do not consider that any of the intervenors’ applications would assist the Court. To the contrary, we consider that participation of the intervenors is likely to unreasonably interfere with the conduct of the proceeding. Nor does an assertion of an interest in the proceeding entitle a person to intervene in the proceeding. For those reasons, we will refuse leave to intervene to each applicant.
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