O'Bryan v Lindholm

Supreme Court Act 1986 ss 10, 17; Supreme Court (General Civil Procedure) Rules 2015 rr 28A.05, 64.43.

O'Bryan v Lindholm [2024] VSCA 130, applied.

1. In October 2023, Uncle Robbie Thorpe ('the applicant') 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'.
2. The court refused to issue the summons and did not initiate a proceeding. By originating motion filed in the Trial Division on 7 March 2024, the applicant sought judicial review of that decision. A trial was conducted on 19 July 2024 and the matter stands reserved for judgment.
3. After judgment was reserved, the applicant filed two further affidavits affirmed on 22 July 2024. He also sought to file a third affidavit. The judge refused leave in relation to that affidavit, but indicated that an outline of submissions, draft minutes of order and addendum to the authorities relied on which were exhibited to that affidavit would be considered by the judge in deciding the case. On 23 July 2024 the applicant was advised, through the judge's associate, that the judge considered that the balance of the affidavit did not concern any issue for determination in the proceeding. The decision was not made the subject of any order.
4. The applicant then sought to file documents in the Registry of the Court of Appeal via RedCrest, including an application for leave to appeal the judge's decision not to accept the third affidavit. The Registrar rejected the documents for filing. The applicant was advised by email that the Registrar considered that the ruling that he sought to challenge was not a decision from which an appeal could lie to the Court of Appeal. As a result, the Court did not have jurisdiction to consider the proposed application for leave to appeal, and the documents that had been submitted were 'substantially irregular'.
5. The applicant sought a direction from a judge to the Registrar to accept the documents for filing, pursuant to rr 28A.04(5)-(6)[1] and 64.43(5) of the Supreme Court (General Civil Procedure) Rules 2015.[2] It is convenient to set out r 64.43(5) in full, alongside the associated subrules setting out the Registrar's power to refuse to file applications:

(1) The Registrar may refuse to accept for filing any application, including for leave to appeal, notice of appeal or other notice, written case, written case in response, affidavit or other document if the Registrar considers that -

(a) the document is irregular;

(b) the document is frivolous or vexatious on its face or by reference to any materials already filed or submitted for filing; or

(c) the filing of the document would give rise to an abuse of the process of the Court.

(2) The Registrar may refuse to accept for filing any application, including for leave to appeal, notice of appeal or other notice, written case, written case in response, affidavit or other document if -

(a) it is not complete;

(b) it does not comply with these Rules or the requirements of any applicable practice note;

(c) it is not properly signed, if required to be signed;

(d) it is not accompanied by all the documents required by this Order or any applicable practice note; or

(e) any applicable fee has not been paid.

(5) The Court of Appeal constituted by one or more Judges of Appeal may direct the Registrar to accept for filing any document which the Registrar has refused to accept under this Rule.

1. The evident purpose of the power of direction in sub-r (5) is to enable judicial consideration of the question whether a document should be accepted for filing. That consideration need not proceed by identifying the Registrar's reasons for refusing to accept the document and ascertaining whether they are infected by error. Such reasons might be relevant to the judge's consideration of the matter, but the role of the judge under sub-r (5) is not so confined. Rather, the judge is required to form a view, by reference to the criteria specified in the rule, as to whether the relevant document should be accepted for filing. In other words, the judge considers that question afresh.
2. The issue in this case is whether the Court of Appeal could hear an appeal from the judge's refusal to accept the third affidavit for filing.
3. By s 10(1)(a) of the Supreme Court Act 1986, the Court of Appeal has jurisdiction to hear and determine 'all appeals from the Trial Division constituted by a Judge of the Court'.
4. Whereas s 10(1)(a) confers jurisdiction, it is not the source of the right to appeal. In order to determine if a party has a right to appeal, it is necessary to identify whether any legislation confers that right to appeal, or whether the Rules of the Supreme Court do so. The scope of the right, that is, the range of decisions from which an appeal can be brought, is to be determined by reference to the particular Act which confers the right.[3] The scope of the right to appeal from a decision of a judge of the Trial Division is generally determined by reference to s 17(2) of the Supreme Court Act 1986.[4] No other source of the right is relevant in this case.
5. Section 17(2) provides that, unless otherwise expressly provided by any Act, 'an appeal lies to the Court of Appeal from any determination of the Trial Division constituted by a Judge of the Court'.
6. The critical issue is whether the refusal of the judge to accept the affidavit for filing constitutes a 'determination' within the meaning of this provision.
7. The word 'determination' in s 17(2) is not to be given any narrow construction, but is to be construed with all the amplitude that its ordinary meaning permits.[5] Nonetheless, it has been held that the determinations in question are those made by some order or declaration which is sufficient in its own terms to resolve a matter, being a controversy or dispute between parties.[6] The 'determination' in s 17(2) is the same 'determination' which is the subject of s 17(1), which provides that the 'Trial Division constituted by a Judge of the Court may hear and determine all matters, whether civil or criminal, not required by or under any other Act or the Rules to be heard and determined by the Court of Appeal'. In other words, a 'determination' in s 17(2) is a determination which resolves a 'matter'.[7]
8. The Court in O'Bryan explained:

In reading ss 17(1) and (2) together, then, the obvious purpose of s 17(2) is to provide for the crystallisation of a right to appeal after a 'matter' has been finalised. The concept of a 'matter' in s 17(1) will include a proceeding, or some part of a proceeding. It may also extend to a justiciable controversy requiring the determination of the court, including an interlocutory determination. However, any such controversy would involve a controversy over some right, duty, or liability so as to be appropriate for the determination of the court.[8]

1. In O'Bryan, the Court rejected an argument that the making of a finding of fact along the way to a final determination constituted a 'determination' for the purposes of s 17(2).[9] The same reasoning dictates that the making of a decision whether or not to accept an affidavit for filing, which does not resolve any controversy over any right, duty or liability, is merely a step along the way to making a final determination, rather than a 'determination' in and of itself.
2. It follows that no appeal lies (with or without leave) to the Court of Appeal from the decision of the trial judge not to accept the affidavit for filing. For that reason, the material sought to be filed in the Court of Appeal Registry is irregular and should not be accepted for filing. The application for a direction to the Registrar to do otherwise is refused.

[1] Rule 28A.04 is part of O 28A, which is concerned with electronic filing in RedCrest. For the purpose of determining this application, the nature of this Court's powers under r 28A.05(5)-(6) is not relevantly different to the nature of its powers under r 64.43(5).

[2] The applicant sought a direction from 'three Aboriginal Judges of the Court of Appeal'. A single judge has power to make a direction of the kind sought by the applicant. It is not open to a party to nominate the composition of the Bench that will hear their case.

[3] O'Bryan v Lindholm [2024] VSCA 130 [66] (Kennedy, Walker and Macaulay JJA) ('O'Bryan') citing Moorabbin Transit Pty Ltd v Bekhit [2016] VSCA 70; (2016) 50 VR 563, 572 [37] (Tate, Ferguson and McLeish JJA).

[4] O'Bryan [2024] VSCA 130 [68] (Kennedy, Walker and Macaulay JJA).

[5] O'Bryan [2024] VSCA 130 [71]-[72] (Kennedy, Walker and Macaulay JJA) citing Roy Morgan Research Centre Pty Ltd v Commissioner of State Revenue (Vic) (2001) 207 CLR 72, 78 [10]-[11] (Gaudron, Gummow, Hayne and Callinan JJ, Kirby J agreeing at 87 [40]).

[6] O'Bryan [2024] VSCA 130 [73]-[79] (Kennedy, Walker and Macaulay JJA) citing City of Camberwell v Camberwell Shopping Centre Pty Ltd [1994] VicRp 10; [1994] 1 VR 163, 169 (Fullagar J) and TGIO v Viney [1995] TASSC 20; (1995) 4 Tas R 236, 242, 243 (Underwood J).

[7] O'Bryan [2024] VSCA 130 [87]-[88] (Kennedy, Walker and Macaulay JJA).