Plaintiff v Defendants

2 During an interaction between them in December 2014, Mr Richards allegedly punched Mr Gwin to the jaw. Mr Richards was charged with assault under s 23 of the Summary Offences Act 1996. The assault charge was listed for a contested hearing before Magistrate Lamble. After his application for an adjournment was refused, Mr Richards left the hearing. Magistrate Lamble proceeded to hear evidence, found the charge proven, convicted Mr Richards and imposed a monetary penalty. Mr Richards appealed the conviction and sentence to the County Court. At the appeal hearing, after Judge Carmody found the charge of assault proven, Mr Richards withdrew his appeal against sentence. In this proceeding Mr Richards has applied, pursuant to O 56 of the Supreme Court (General Civil Procedure Rules) 2015 (the Rules), for review of the order of Magistrate Lamble, on grounds which can be summarised:

(a) he was not accorded procedural fairness by Magistrate Lamble;

(b) jurisdictional error;

(c) inadequacy of reasons;

(d) the conviction and punishment were excessive; and

(e) conduct by the prosecution, first in bringing the charge and second in relation to the evidence presented to the court, necessitated that the order made by Magistrate Lamble quashed.

3 This proceeding was commenced out of time. Mr Richards made application to extend the time to commence proceedings. Mr Richards was self-represented at the hearing before me.

4 The second defendant opposed the application for extension of time within which to commence proceedings, and submitted Mr Richards' grounds for review were without merit.

5 In an associated proceeding heard together with this matter, Mr Richards applied to review the unreasonable noise charge conviction. These reasons should be read together with the judgment in that proceeding.[1]

6 In evidence given at the hearing before Magistrate Lamble, Mr Gwin said that at approximately 5.00 pm on 29 December 2014 he was walking down his driveway intending to move his car. Mr Richards was walking past and said something. He turned and Mr Richards grabbed him by the throat. He yelled to his wife, who was inside their house, to call the police. He said when Mr Richards 'came back at me', he attempted to knee Mr Richards away to protect himself, and Mr Richards then punched him to the face. The punch hit his jaw, he was stunned and surprised, and his mouth and jaw were sore for about a day afterwards.

7 Mrs Gwin said after Mr Gwin went outside to move the car she was at the front of the house and through a window saw Mr Richards stop as he was walking past, heard heated words, then saw Mr Richards grab Mr Gwin around the throat. Mrs Gwin saw her husband put his knee up, then Mr Richards punched him to the face and Mr Gwin fell backwards.

8 When the assault matter came on for hearing before Magistrate Lamble on 14 December 2015, Mr Richards applied for an adjournment. First, Mr Richards said that the solicitors who had been representing him withdrew their services without explanation a week and a half earlier, he then made an application for legal aid, and was awaiting a response. Second, Mr Richards said that whilst five police officers attended on the day of the alleged assault, only two were listed to give evidence. He wanted an opportunity to subpoena the other three officers because of questions he raised about the process of investigation and bringing the charge. Finally, Mr Richards made reference to injuries from which he suffered, which he said required him to take heavy pain medication. He said this meant that in order to properly represent himself he would require a month to prepare '... to have any sort of reasonable chance of having a fair trial.' Mr Richards relied on what he identified as the common law right to a fair trial, and on sections of the Charter of Human Rights and Responsibilities Act 2006.[2]

9 During the hearing of the application to adjourn, Magistrate Lamble was told by the prosecutor that she was the presiding magistrate when application for an interim intervention order was made by Mr Gwin in response to the alleged assault. Mr Richards then objected to Magistrate Lamble hearing the assault charge.

10 Magistrate Lamble declined to disqualify herself and refused Mr Richards' application for an adjournment. Mr Richards then left the hearing room, and the matter proceeded in his absence. After hearing evidence, Magistrate Lamble found the assault charge proven, convicted Mr Richards, imposed a monetary penalty and ordered that he pay specified costs.

11 Mr Richards appealed that conviction and sentence to the County Court. The appeal was heard by Judge Carmody on 6 and 7 June 2016. His Honour found the charge of assault proven. Mr Richards then withdrew his appeal against sentence.

12 This proceeding was commenced on 27 March 2017, more than 12 months out of time.[3] Mr Richards made application to extend the time to commence proceedings relying on r 56.02(3) of the Rules, which provides:

The Court shall not extend the time fixed by paragraph (1) except in special circumstances.

13 In affidavits in support of his application to extend time Mr Richards relied on the difficulties he faced as a litigant in person, which he said were compounded by serious injuries to his spine which cause chronic pain requiring regular use of strong painkillers. Mr Richards said his state of mind was affected by pain, medication use, forgetfulness and difficulties with concentration. Mr Richards relied on two reports from his treating general practitioner, Dr Baro, who said that in a 1996 motor car accident Mr Richards suffered head, neck and spinal injuries, bilateral temporomandibular joint injuries requiring surgery, and other soft tissue injuries with complications including pain, sleep disruption, anxiety, depressive episodes and problems with memory and concentration.

14 During oral submissions Mr Richards explained that he chose to appeal to the County Court first, and that took him past the 60-day period. He said once he realised the County Court trial 'was unfair' he withdrew the appeal. He explained the delay from withdrawal of the County Court appeal in June 2016 to commencement of this proceeding in March 2017 on the basis that he was dealing with three matters to do with Mr Gwin, the assault conviction, an interim intervention order which he appealed to the County Court, and the unreasonable noise charges. Mr Richards said his medical issues made it more difficult for him to respond in a timely fashion to the requirements of the various proceedings in which he was involved. In submissions Mr Richards emphasised the flexible and broad nature of the 'special circumstances' test,[4] and submitted time should be extended when it is in the interest of justice that this occur.[5] Mr Richards submitted the merits of his application for review were strongly in his favour, and in the circumstances time should be extended.

15 The second defendant submitted Mr Richards' application to extend time to commence the proceeding should be refused because the delay of over one year was considerable, no adequate explanation for the delay had been given, relief on judicial review was discretionary and may be refused on the basis of delay in instituting proceedings alone, the Court should not be objectively satisfied special circumstances exist, Mr Richards does not have an arguable case, and the public interest in finality of litigation weighed in favour of the application for extension of time being rejected.

16 In Lazarevic v Victoria Police,[6] Derham AsJ summarised considerations relevant to an application pursuant to r 56.02(3):

1. The language of the requirement in r 56.02(3) is significantly different. It is general language precluding the Court extending time 'except in special circumstances'. This expression has been said to be 'discouraging rather than encouraging' because of its negative expression.
2. The authorities establish that:

(a) The rule requires the Court to be objectively satisfied that special circumstances exist;

(b) The existence of special circumstances is to be determined by reference to all the circumstances of a case;

(c) The factors relevant to the exercise of the discretion under Rule 56.03(2) include, but are not limited to:

(i) the period of the delay;

(ii) the reason for the delay;

(iii) whether the plaintiff has an arguable case;

(iv) the justice to both parties, including the prejudice to the parties; and

(v) the public interest in the finality of litigation.

1. It is important to be aware of the way in which an arguable case, or a case that is not arguable, may be taken into account. The fact that the plaintiff may demonstrate an error below, or other grounds for judicial review, does not automatically result in there being 'special circumstances', for if that were so there would be little practical point to the time limit contained in the Rule.[31] On the other hand, where it is clear that a plaintiff's grounds are not arguable, or he has no real prospects of success, there will ordinarily be no point in extending the time and therefore no special circumstances exist.

17 Mr Richards left the hearing before Magistrate Lamble on 14 December 2015 after his application to adjourn was refused. The hearing of the assault charge proceeded in Mr Richards' absence. After the assault charge was heard the intervention order application by Mr Gwin against Mr Richards was mentioned before Magistrate Lamble. Mr Richards returned to the hearing-room, and a discussion occurred between him and Magistrate Lamble in relation to Mr Richards' dissatisfaction with the outcome of the assault charge hearing:

Magistrate Lamble: You've got two choices when you are dissatisfied with a decision in a criminal charge, one is to appeal the matter to the County Court, the other is to seek a review of the matter in the Supreme Court if the issues relate to a question of law. The registry is the place where you would get information about those issues, it is not my role to explain.

Mr Richards: Yes, I'm just seeking an order to stay your decision pending an appeal for 28 or 30 days, whatever the requirements are, or 60 days under judicial review. There's Order 56, which your Honour is aware of.

18 This exchange demonstrates that even in December 2015 Mr Richards was aware of the general nature of an O 56 proceeding, and of the timeframe for commencing proceedings. Mr Richards chose to proceed by appealing to the County Court. After the County Court appeal was heard Mr Richards delayed over nine months before commencing the proceeding to review the decision of Magistrate Lamble.

19 As part of the explanation for delay, Mr Richards proffers that he was involved in two other proceedings in relation to the Gwins. The interim intervention order appeal was heard in the County Court by Judge Gucciardo on 27 and 28 July 2015. Because it occurred before the assault conviction the hearing of that appeal does not assist Mr Richards in explaining the delay to commencing proceedings in this Court. The various proceedings in which Mr Richards was involved were listed on a number of occasion in either the Magistrates' Court or County Court in the period between December 2015 and March 2017. However, two of those listings were mentions, no lengthy hearings were involved, and Mr Richards did not attend the hearing of the unreasonable noise charges. In my view the fact that Mr Richards was involved in other legal proceedings is not an explanation for his delay in commencing this proceeding.

20 I accept the evidence of Dr Baro and Mr Richards that he suffers from various medical conditions which cause pain requiring the regular use of analgesic medication, with associated psychological symptoms, forgetfulness and difficulties with concentration. In July 2015, Mr Richards appeared for two days before Judge Gucciardo on the hearing of the interim intervention order application by Mr Gwin, which Mr Richards had appealed to the County Court. In June 2016 Mr Richards appeared before Judge Carmody for two days on the hearing of the assault conviction appeal. In this proceeding and the unreasonable noise charges proceeding Mr Richards prepared documentation including the originating motions, a number of affidavits and extensive written submissions. At the hearing before me Mr Richards appeared able to represent himself. Mr Richards has shown himself able, despite his health difficulties, to take significant steps to represent himself in the various proceedings. Mr Richards has not explained how the chronic medical conditions from which he suffers prevented him from commencing the proceeding for over fifteen months, other than to say, in a general way, that those conditions resulted in him needing more time to prepare. In my view the health conditions from which Mr Richards suffers do not adequately explain the delay in commencing this proceeding.

21 For reasons given later in this judgment I conclude Mr Richards' grounds for review are without merit. The assault charge has already been the subject of hearings in the Magistrates' Court and the County Court. Public interest in the finality of litigation weighs in favour of the application to extend time to commence this proceeding being refused.

22 I will refuse Mr Richards' application to extend time to commence this proceeding.

23 Mr Richards seeks review of the order made by Magistrate Lamble on 14 December 2015 convicting him of assault. Mr Richards appealed Magistrate Lamble's order to the County Court. The appeal was heard by Judge Carmody on 6 and 7 June 2016. In an affidavit filed in this proceeding Mr Richards said he and other witnesses gave evidence at the hearing before Judge Carmody. Transcript of that hearing is not available.

24 A person convicted of an offence by the Magistrates' Court may appeal to the County Court against the conviction and sentence.[7] The nature of such an appeal is governed by s 256 of the Criminal Procedure Act 2009[8], which relevantly reads:

(1) An appeal under section 254 must be conducted as a rehearing and the appellant is not bound by the plea entered in the Magistrates' Court.

(2) On the hearing of an appeal under section 254, the County Court or the Supreme Court, as the case requires -

(a) must set aside the sentence of the Magistrates' Court; and

(b) may impose any sentence which the court considers appropriate and which the Magistrates' Court imposed or could have imposed; and

(c) may exercise any power which the Magistrates' Court exercised or could have exercised.

...

(5) A sentence imposed under subsection (2) is for all purposes to be regarded as a sentence of the County Court or the Supreme Court, as the case requires.

25 In a certified extract produced in this proceeding the result of appeal is recorded as follows:

Charge(/s) 1

The orders imposed at the Magistrates' Court of Victoria on 14/12/2015 are set aside, and in their stead the following orders are made: Charge/s Proven

Charge(/s) 1

Convicted and order that JASON RICHARDS pay a fine in the sum of $1,200.00.

Order that JASON RICHARDS pay the amount outstanding to the Registrar of the County Court.

Order that JASON RICHARDS is granted a stay to 07/09/2016.

Note: The Appellant abandoned his appeal against sentence after Charge 1 was found proven on the appeal.

26 The second defendant submitted that the order for conviction and sentence on the charge of assault is the order of Judge Carmody made after a re-hearing of the assault charge. In the circumstances an application to review the order of Magistrate Lamble was no longer available or alternatively was of no utility.

27 In response Mr Richards submitted that he withdrew the County Court appeal, and the Magistrates' Court decision or order was then reinstatement by Judge Carmody.

28 I accept the submissions of the second defendant on this point. Certification of the result of appeal clearly shows that, in accordance with s 256 of the Criminal Procedure Act, Judge Carmody set aside the Magistrates' Court order made 14 December 2015, found the charge of assault proven and imposed a sentence. Once the Magistrates' Court order was set aside as part of the process of appeal and re-hearing in the County Court, there was no longer a basis for review of that order by Mr Richards. For this reason alone I conclude Mr Richards' application to review the order of Magistrate Lamble is without merit.

29 Mr Richards submitted, for the following reasons, that he was not afforded procedural fairness during the Magistrates' Court hearing. First, Magistrate Lamble had previously dealt with the interim intervention order application by Mr Gwin. The assault allegation was central to that application. Mr Richards submitted Magistrate Lamble should have declined to sit on the assault charge on the grounds of bias. Second, Mr Richards submitted Magistrate Lamble erred in refusing his application for an adjournment, in particular by wrongly concluding the reason he was no longer represented by solicitors was that he had not paid them or put them in funds, and that Mr Richards' application for an adjournment was an attempt to intentionally delay the matter.

30 The second defendant submitted first, that earlier involvement by the magistrate in a related proceeding could not, without more, give rise to an apprehension of bias. Second, Magistrate Lamble gave Mr Richards a reasonable opportunity to make his argument on the application to adjourn, considered his submissions, and exercised her discretion to reject the application, as she was entitled to do.

31 The interim intervention order first came before Magistrate Lamble on 16 January 2015. Mr Gwin appeared and gave evidence. Mr Richards was not present, and the application for an interim order was dealt with ex parte. After hearing evidence from Mr Gwin, Magistrate Lamble relevantly concluded:

Given what's contained in your application about the assault, which you've told me is true and correct, I will make that order today and that will last until this matter is finally returned and so it will continue on if the matter can't be finalised on the next occasion.

I understand that order was made under the Personal Safety Intervention Orders Act 2010, s 35 of which provides:

(1) The court may make an interim order if a person has applied to the court for a personal safety intervention order and the court is satisfied -

(a) on the balance of probabilities, that an interim order is necessary pending a final decision about the application -

(i) to ensure the safety of the affected person; or

(ii) to preserve any property of the affected person; and

(b) that it is appropriate to make the order in all the circumstances of the case.

By way of contrast, to make a final order, the court must be satisfied on the balance of probabilities that the respondent to the application committed the prohibited behaviour against the affected person.[9]

An interim order may be made whether or not the respondent has been served and whether or not the respondent is present.[10] On the second occasion the interim intervention order was before Magistrate Lamble only for mention. Responding to the application to disqualify herself, Magistrate Lamble said, in relation to the two occasions the interim intervention order application was before her:

The Court is not making findings of fact. If an interim intervention order is made, the Court is not making decisions about whether the order should continue. It's a procedural process until you get to the hearing.

32 The test where a party seeks recusal was recently summarised by the Court of Appeal in Bodycorp Repairers Pty Ltd v Holding Redlich,[11] as follows:

Accordingly, it is incumbent upon the party seeking recusal: first, to identify the conduct said to give rise to the apprehension of bias through pre-judgment; secondly, to articulate the connection between that conduct and the possibility of departure from impartial decision-making with respect to the questions to be decided; and thirdly, to consider of the reasonableness of the apprehension of that departure being caused by that conduct in that way.[12]

Judges have a duty to exercise their judicial function, and should only grant an application not to hear a matter on substantial grounds.[13] A reasonable apprehension of bias on the basis of prejudgement means 'that the trial judge has formed a fixed view to which it may be expected that he or she will adhere, regardless of the evidence or the submissions made by the complaining party'.[14]

33 For the following reasons, Mr Richards has not established lack of procedural fairness on the basis of bias. Magistrate Lamble presided on the ex parte interim intervention order application on 16 January 2015. On that occasion Magistrate Lamble heard the allegation of assault. Her Honour did not reach any conclusion in relation to any matter which might reflect prejudgement of an issue requiring determination on the assault hearing. She was not required to, and did not, make a finding that the assault occurred. The matters to be determined on the interim intervention order application were distinct from the matters to be determined on the assault charge hearing. In my view, there was no conduct by Magistrate Lamble giving rise to an apprehension of bias through pre-judgment. Further, Mr Richards has not articulated any connection between the conduct of Magistrate Lamble in hearing and determining the interim intervention order application and the possibility of departure by Magistrate Lamble from impartial decision making with respect to the questions to be decided on the assault charge hearing.

34 When Mr Richards applied to Magistrate Lamble to adjourn the assault charge hearing, he said that his solicitors had withdrawn without explanation about a week and a half before the hearing, and that his response was to file an application for legal aid. After some discussion it became clear the solicitors had withdrawn approximately three weeks before the hearing. Magistrate Lamble asked Mr Richards whether the solicitors withdrew because he did not have enough money to pay them. He said this was not the case, but did not then explain why he had made application for legal aid rather than privately engaging the services of another solicitor. In response to the application to adjourn the prosecution submitted that the assault charge had been through a number of mentions, a contest mention and a final case conference, which Mr Richards attended in person; no indication had been given that further police witnesses were required; and that Mr Richards previously had access to the police brief and had ample time to fully understand the evidence upon which the prosecution would rely, and to prepare for trial.

35 Refusing Mr Richards' application to adjourn, Magistrate Lamble said:

In terms of the adjournment, I agree with what you say, it's not up to the prosecutor to speculate about what advice you've received or to pass on information that he may have from the solicitor about the circumstances that have applied to the hearing of another charge, but what I am able to conclude as a result of what you say is that somewhere around 22 November, so we're talking about three weeks ago, you were advised that your solicitor ceased to act. The best that you can say about the arrangements that you put in place for legal representation after that are that you applied for Legal Aid. You don't say, 'I approached another solicitor.' It seems to me that you're doing everything in your power to delay this matter, Mr Richards, in circumstances where I don't consider that is justified. Whether it was as a result of the application of the Charter of Human Rights or general common law principles about what's required to ensure that a person obtains a fair trial.

Before I adjourn the matter, I would have to have some belief that if I do adjourn the matter that a solicitor will be in place on the next occasion. Based on what you've told me, I don't accept that is the situation.

...

[T]he solicitor withdrew three weeks ago and there's nothing that you say other than you applied for Legal Aid to suggest that you've made any effort to replace that solicitor, and I'm not persuaded that a further delay will have the end result of you being legally represented. So I'm saying the situation now is the same as it would be even if the matter was adjourned. This matter is now listed before the court on the fourth occasion, it's been listed for a contest on a previous occasion, it's been listed for a contest mention. If you haven't yet issued subpoenas for these police officers that you say are relevant, I have absolutely no confidence that a further adjournment would lead to the issuing of those subpoenas and I'm not persuaded that by refusing to grant the adjournment I'm in any way [compromising] your rights under the Charter. The Charter has to be exercised in a context, and the context is that the Court has responsibilities, certainly, to safeguard your rights, and that's a primary responsibility whether at common law or under the Charter, but the Court also has to ensure that the case is dealt with by proper administration of justice that takes into account not only your needs but the needs of the community in terms of the prosecution of offences, the needs of witnesses and, in these circumstances, I don't accept that your wish and right to be legally represented at this point in time is overtaken by the needs of the proper administration of justice.

36 A refusal to adjourn proceedings may constitute a failure to accord procedural fairness and be a basis for relief on application for judicial review. In Brimbank Automotive Pty Ltd & Ors v Murphy & Anor,[15] in relation to an application to review a refusal to adjourn, Kaye J said:

It is fundamental to the present application to bear in mind that a decision by a trial judge, as to whether to grant an adjournment, is a discretionary decision. Appellate courts, and this Court on review of such a decision, have repeatedly emphasised that the court should only interfere with such a decision in exceptional circumstances. In particular, an appellate court will only intervene, if it is satisfied that the decision relating to the adjournment would cause irreparable injustice to the party affected by it.

For the following reasons I conclude there was no failure by Magistrate Lamble to accord Mr Richards procedural fairness when she refused his application to adjourn the assault hearing. First, Magistrate Lamble gave Mr Richards the opportunity to make submissions in support of his application. Second, Magistrate Lamble was not obliged to accept the reasons proffered by Mr Richards as justifying adjournment. There was, as Magistrate Lamble observed, an apparent inconsistency between Mr Richards' statement that he had funds to pay his former solicitor, and his actions, once that solicitors withdrew of applying for legal aid rather than engaging another solicitor to represent him. Third, Magistrate Lamble was entitled to conclude, given the history of the proceeding, and the period of at least three weeks between the solicitor withdrawing and the date of hearing, that Mr Richards had adequate opportunity to subpoena witnesses and to prepare for the hearing. Fourth, the comment by Magistrate Lamble that Mr Richards was 'doing everything in [his] power to delay this matter', did not reflect prejudgement by Magistrate Lamble, but was made in the context of the magistrate's understanding of the history of the proceeding and the actions of Mr Richards.

37 There is no basis to conclude Magistrate Lamble failed to accord Mr Richards procedural fairness at the hearing on 14 December 2015.

38 Mr Richards submitted that where a litigant appeared in person a magistrate was required to intervene to ensure the litigant had a clear understanding of the case to be met, and that an imbalance in representation did not prejudice a fair trial. Mr Richards argued those principles applied equally in circumstances where he left the hearing, and the assault charge proceeded in his absence. Relying on a ruling of Smith J in Panagopoulos v Southern Health Care Network & Anor[16] Mr Richards submitted that the failure of Magistrate Lamble to test the evidence given in his absence amounted to a failure to ensure a fair and just hearing.

39 Mr Richards' argument does not identify any basis for concluding that her Honour's decision was infected by jurisdictional error. If there was any substance in Mr Richards' submission it could only relate to an argument that he was not accorded procedural fairness.

40 The authorities recognise the need for a trial judge to strike a balance between providing advice and assistance to an unrepresented litigant without intervening to the extent that a reasonable observer might conclude a position of neutrality had not been made maintained.[17] However, Mr Richards was not a litigant in person who suffered disadvantage by being faced with a legally represented opponent. Mr Richards chose to leave the hearing after his application to adjourn was refused. In those circumstances there was no obligation on Magistrate Lamble to address any imbalance in representation. I agree with the second defendant's submission that it was within her Honour's jurisdiction to hear and determine the charge in the absence of Mr Richards, and in doing so to accept or reject evidence given.[18]

41 I conclude this ground for review is without merit.

42 Mr Richards submitted that Magistrate Lamble's only reason for finding the assault charge proven was 'that there was no contradictive evidence'. He submitted that the reasons for decision were inadequate and demonstrated a failure by her Honour to consider whether the evidence given was credible or admissible.

43 The reasons given by Magistrate Lamble form part of the record of her decision.[19] The relevant section of the transcript reads:

After consideration of the evidence of the witnesses, there's an uncontradicted account of an event and I am satisfied that it amounts to an unlawful assault. The charge is proved.

Mr Richards has not identified any inadequacy in the reasons given by Magistrate Lamble. Her Honour accepted the evidence of the account of the event given by the witnesses. It is implicit that she found that account credible and reliable. Her Honour concluded the event described amounted to an unlawful assault. There is no reason to suppose the evidence on which Magistrate Lamble relied to find the charge proven was inadmissible. Questions of admissibility of evidence, the conduct of hearing and acceptance or rejection of evidence were matters for the Magistrate.

45 Mr Richards submitted that he had no history of conviction for violence, the incident between him and Mr Gwin was in the nature of a neighbourhood dispute, and in the interim intervention order hearing Mr Gwin had said there was no evidence of injury. Mr Richards argued, Magistrate Lamble, having found the assault proven, should not have convicted him.

46 This submission is an attempt to engage in an impermissible merits review, and is rejected.

47 In oral submissions Mr Richards made complaint in relation to the following aspects of the prosecution's conduct in relation to the assault charge. First, Mr Richards said the investigating officer was Mr King, yet the informant who laid the charge was Constable Da Graaff. He submitted Constable Da Graaff has no power to act as informant, and the charge should have been dismissed on that basis. Second, Mr Richards submitted that after Victoria Police investigated the incident a decision was made that he would not be charged. Mr Richards said evidence was given by Mr Gwin at the interim intervention order hearing on 16 January 2014 that he was not to be charged because there was no independent evidence of the assault and no evidence of injury. He maintained that statements to similar effect were recorded in emails sent by Mrs Gwin in early January 2015. Mr Richards submitted that the subsequent decision by Constable Da Graaff to charge him was malicious, and the failure by the prosecution to place before Magistrate Lamble evidence as to the initial decision not to charge, the transcript of evidence given by Mr Gwin at the interim intervention order hearing, and the emails sent by Mrs Gwin was fraudulent.

48 There is no merit in this ground. I accept the submission of the second defendant that 'informant' is defined as the person who signs the charge sheet and files the charge with the Registrar of the Magistrates' Court, and that there is no requirement that the 'informant' attend the scene of the crime, interview an accused, or be the arresting officer.[20] There is no material before me which establishes that in bringing or continuing the assault charge Constable Da Graaff acted maliciously. Nor was there any failure by the prosecution to meet an obligation to bring exculpatory evidence to the attention of the Court. The evidence of Mr Gwin at the interim intervention order hearing and the contents of emails sent by Mrs Gwin were not exculpatory. In any event, the material was known to Mr Richards before the assault charge hearing. He could have chosen to remain at the hearing, cross examine witnesses, and bring material he considered adverse to the prosecution's case to the attention of the Court. The allegation of fraud is without basis.

50 I have rejected Mr Richards' application to extend time to bring this proceeding, and on that basis will dismiss the proceeding. For the reasons given above, I have concluded that the application for review is without merit. I will order that the proceedings be dismissed. I will hear from the parties as to any consequential orders.

[1] Richards v Victorian Magistrates' Court (No 2) [2018] VSC 226 (9 May 2018).

[2] Sections 8, 22, 24 and 25.

[3] Supreme Court (General Civil Procedure Rules) 2015 r 56.02(1).

[4] Prencip v Nissille [1999] VSC 137 (20 April 1999) [13] ('Prencip'); North v Homolka [2014] VSC 478 (2 October 2014) [21].

[5] Prencip [1999] VSC 137 (20 April 1991) [11].

[6] [2014] VSC 497 (3 October 2014) (citations omitted).

[7] Criminal Procedure Act 2009 s 254.

[8] S 256 of the Criminal Procedure Act 2009 was amended in 2016 by Act No 3 of 2016. The amendments are of no consequence to this proceeding.

[9] Personal Safety Intervention Orders Act 2010 s 61. Note: Prohibited behaviour is defined to include assault in s 5 of the Act_._

[11] [2018] VSCA 17 (8 February 2018) [81].

[12] Michael Wilson [2011] HCA 48; (2011) 244 CLR 427, 445 [63]. See also Barakat v Goritsas (No 2) [2012] NSWCA 36 (9 March 2012) [12] (Basten JA).

[13] Ebner v The Official Trustee in Bankruptcy (2005) CLR 337.

[14] Barakat v Goritsas (No 2) [2012] NSWCA 36 (9 March 2012) [40] (Basten JA).

[15] [2009] VSC 26 (10 February 2009) [11] (citations omitted).

[16] (Unreported, Supreme Court of Victoria, Smith J, 15 September 1997).

[17] Downes & Anor v Maxwell Richard Rhys & Co Pty Ltd (in liq) [2014] VSCA 193 (29 August 2014) [23]-[24].

[18] Criminal Procedure Act 2009 pt 3.3, s 80.

[19] Administrative Law Act 1978 s 10.

[20] Criminal Procedure Act 2009 ss 3 and 6.