Appellant v Respondent

1. A notice of appeal must comply with rr 3A.03 and 3A.04 of the Supreme Court (Criminal Procedure) Rules 2017 (Vic) ('Criminal Procedure Rules'):

(1) A notice of appeal under section 272 of the Act or section 430P of the Children, Youth and Families Act 2005 shall -

(a) be signed by the appellant or the appellant's legal practitioner;

(b) set out or state -

(ia) the order which is the subject of appeal;

(ii) whether the appeal is from the whole or part only of the order and, if so, what part;

(iii) the question of law upon which the appeal is brought;

(iv) concisely the grounds of appeal;

(v) the order sought in place of that from which the appeal is brought; and

(c) at its end, name all the persons on whom it is proposed to serve the notice of appeal.

(2) As soon as practicable after filing the notice of appeal, the appellant shall -

(a) deliver a copy to the registrar or other proper officer of the court that made the order the subject of the appeal;

(b) unless the Court otherwise orders, serve a copy of the notice on all persons directly affected by the appeal.

(3) The requirements under paragraph (2) are in addition to the requirements of -

(a) section 272(4) and (5) of the Act, in the case of an appeal or application for leave to appeal under Part 6.2 of Chapter 6 of the Act; and

(b) section 430P(4) and (5) of the Children, Youth and Families Act 2005, in the case of an appeal or application for leave to appeal under Division 5 of Part 5.4 of Chapter 5 of that Act.

(4) The Court may give leave to amend the grounds of appeal or make any other order to ensure the proper determination of the appeal.

(1) Within seven days after filing notice of appeal, the appellant shall file an affidavit stating the acts, facts, matters and circumstances relating to -

(a) the order under appeal;

(b) the grounds set out in the notice of appeal; and

(c) if leave to appeal is needed, why leave to appeal should be given.

(2) There shall be included as exhibits to the affidavit -

(a) a copy of the order under appeal; and

(b) a copy of any reasons given for the order -

or their absence as exhibits shall be accounted for in the affidavit.

(9) The Court may dismiss the appeal if satisfied that -

(a) the notice of appeal does not identify sufficiently or at all a question of law on which the appeal may be brought;

(b) the appellant does not have an arguable case on appeal or to refuse leave would impose no substantial injustice; or

(c) the appeal is frivolous, vexatious or otherwise an abuse of the process of the Court.

1. Per r 3A.10, an Associate Justice has the power to hear and determine any application under r 3A.05.

1. The appeal must be dismissed per r 3A.05(9). Mr Pekar does not have an arguable case for the following reasons.
2. The appeal is brought under s 272 of the Criminal Procedure Act. Section 272(1) states as follows:

A party to a criminal proceeding (other than a committal proceeding) in the Magistrates' Court may appeal to the Supreme Court on a question of law, from a final order of the Magistrates' Court in that proceeding.

1. This requires there be a criminal proceeding and that the appeal be from a final order. As I will explain, that is not the case here.
2. The term 'criminal proceeding' is not defined in the legislation. However, pursuant to section 5(a), a criminal proceeding is commenced 'by filing or signing a charge-sheet in accordance with section 6'. Section 6 states:

(1) A criminal proceeding is commenced -

(a) by filing a charge-sheet containing a charge with a registrar of the Magistrates' Court; or

(b) if the accused is arrested without a warrant and is released on bail, by filing a charge-sheet containing a charge with a bail justice; or

(c) if a summons is issued under section 14, at the time the charge-sheet is signed.

(2) If a charge-sheet is filed in accordance with the method prescribed by the rules of court for electronic filing, the requirements of section 8(1) of the Electronic Transactions (Victoria) Act 2000 are taken to have been met.

(a) be in writing; and

(b) be signed by the informant personally; and

(c) comply with Schedule 1.

1. In Fox v DPP,[18] the Court of Appeal held that:

It is the step of filing a charge-sheet that vests the Magistrates' Court with jurisdiction to hear the proceeding.

1. In considering whether a charge sheet had been filed, Niall JA (as his Honour then was) held in Fiore v Magistrates' Court of Victoria[19] that it was a question of fact whether a document had been filed, with proof facilitated by the fixing of a stamp.[20] However, the 'rules do not provide that a document is not filed unless and until it is stamped.'[21]
2. As leave was not given to file the charge sheet, no criminal proceeding commenced.
3. An appeal under s 272(1) must be on a question of law from a final order of the Magistrates Court. In Chalker v Baldwin,[22] Niall JA (as his Honour then was) considered the words 'final order' within the context of s 272. I gratefully adopt his Honour's analysis at [15]-[17]:

The legal effect of an order of a magistrate striking out a charge has been the subject of a number of decisions in this Court. In R v McGowan, charges were struck out by a magistrate on the basis that the court lacked jurisdiction to hear the charges. This Court subsequently held that the court did have jurisdiction. The question then arose as to whether a magistrate could set aside an order striking out the charges and reinstate them for hearing. In the course of holding that a magistrate could set aside such an order, Kaye J concluded that:

[A]n order striking out an information does not put an end to the proceedings. It is not a curial determination of the charge alleged; it is no more than a direction to remove the information from the list of matters for hearing and determination by the Court.

That reasoning was adopted as correct by the Court of Appeal in Director of Public Prosecutions v Moore, where it was held that the Supreme Court, on appeal from the Magistrates' Court, did not have jurisdiction to entertain an appeal from an order of the Magistrates' Court striking out a charge filed in the court. Batt JA (with whom Chernov and Eames JJA agreed), citing R v McGowan, said:

The general principle is that what has been struck out, whether it be an information, charge, summons, proceeding or appeal, may be restored or reinstated, because the legal effect of striking out is merely to take the subject matter out of the court lists. As the subject matter is capable of being brought on again, the order striking it out is not final.

Based on those decisions, I am bound to conclude that the order of the magistrate striking out the charges was not a final order for the purpose of s 272 of the CPA. The order striking out the charges did not involve a determination of the charges. As a matter of legal effect it remains open for the charges to be reinstated. There has been no final determination of rights. The present appeal must be dismissed as incompetent. (citations omitted)

1. A similar analysis applies here. The order of the Magistrate refusing leave to issue the charge is not a final order. The appeal is not legally competent.[23]
2. Finally, per 3A.04(2)(b) of the Criminal Procedure Rules, Mr Pekar was required to provide an affidavit with the Magistrate's reasons or an explanation for their absence. He did not provide this affidavit. Nor did Mr Pekar provide an affidavit responsive to the 27 November 2024 orders. He has produced no evidence in support of the statement in paragraph 1 of his irregular affidavit, being the Pekar affidavit, that the Magistrate 'refuse[d] the application out of hand without stating under which law or legislation the application was refused which (sic) the bases for An Appeal.' In particular, Mr Pekar has not produced the transcript of the hearing before the Magistrate or deposed as to why it cannot be produced.
3. Without the transcript of the hearing, or the Magistrate's reasons, any consideration of the same is mere speculation. At any rate, it is unnecessary given the appeal is incompetent.

1. There is no substantial injustice in dismissing the proceeding. It seems that Mr Pekar agrees that the proceeding should not have been commenced under the Criminal Procedure Act. He perhaps wishes to continue the proceeding directly under ss 84 or 263 of Bankruptcy Act. Section 84 concerns the manner of proving debts. Section 263 concerns concealment of property with intent to defraud and is a penalty provision. Those sections do not provide a mechanism to appeal the Magistrate's orders. This is not a situation where Mr Pekar's notice of appeal can be cured by amendment. To allow his appeal to continue would cause unnecessary costs, and be an inefficient use of time.
2. Pursuant to r 3A.05(9) of the Criminal Procedure Rules, Mr Pekar's appeal must be dismissed.
3. Given the findings above, it is unnecessary to address Mr Rickards' alternative applications.
4. As a matter of completeness, I will address the two oral applications made by Mr Pekar.

1. Per r 9.06 of the Rules, the Court has the power to add, remove or substitute a party. However, here, as the proceeding will be dismissed, there is no utility in substituting a party. Even if the Magistrates Court was added or substituted as respondent to the proceeding, for the reasons discussed, the proceeding should be dismissed.

Should the proceeding be remitted to the Magistrates Court?

1. After hearing and determining an appeal, a matter may be remitted to the Magistrates Court for rehearing per s 272(9) of the Criminal Procedure Act. Here, the matter has not proceeded to trial but is being dismissed summarily. There is no basis to remit it to the Magistrates Court. Further, given the reasons for dismissal, there is no practical utility in doing so.

[1] Affidavit of Michael Aidan Rickards affirmed on 26 November 2024 ('Rickards affidavit'), [6].

[3] Exhibit 'MAR-1' to the Rickards affidavit, 1-7.

[5] Exhibit 'MAR-1' to the Rickards affidavit, 8.

[11] Exhibit 'MAR-1' to the Rickards affidavit, 85-101.

[12] Exhibit 'MAR-1' to the Rickards affidavit, 170-174; Rickards affidavit, [38].

[13] Exhibit 'MAR-1' to the Rickards affidavit, 181-182.

[14] Exhibit 'FP1' to the affidavit of Fima Pekar sworn on 8 October 2024 ('Pekar affidavit').

[15] Transcript of proceedings, Pekar v Rickards (Supreme Court of Victoria, S ECI 2024 05400, Ierodiaconou AsJ, 19 March 2025) ('T'), 22.29-31.

[17] [1995] VicRp 58; (1995) 2 VR 318, 320.

[18] [2022] VSCA 38; (2022) 66 VR 223, [7]

[19] [2020] VSC 92 ('Fiore'), [114].

[20] See: Magistrates' Court Criminal Procedure Rules 2019 (Vic), s 11.

[22] [2021] VSC 644.

[23] Tatana v DPP [2011] VSC 316, [20].