Plaintiff v Defendants

JUDICIAL REVIEW - Supreme Court (General Civil Procedure) Rules 2015 (Vic) Order 56 - Relief sought in nature of certiorari - When relief may be refused as matter of discretion - Where lack of utility - Where relief would impermissibly fragment workings of criminal courts.

1 Mr Rohan Michael Brown, who is currently on bail, faces a number of charges for offences alleged to have been committed against members of Victoria Police. On 1 December 2021, he filed an originating motion for judicial review under r 56.01(2) of the Supreme Court (General Civil Procedure) Rules 2015 (Vic) ('the Rules') seeking orders in the nature of certiorari to quash a number of decisions and procedural actions taken in his criminal proceedings. In broad terms, Mr Brown alleges, among other things, that a number of the decisions and actions were 'based on, underpinned, facilitated, governed and ... obtained by fraud.'[1] In his originating motion, Mr Brown names 'Corrections Victoria/Department of Justice (Kate Fitzgerald)' as the first defendant, 'Magistrates Court Victoria (Magistrate Bulger) [sic]'[2] as the second defendant, and 'Police Department (VIC) (Simona Tuica)' as the third defendant.

2 Now before the Court are two summonses filed by the first defendant and third defendant on 18 February 2022, respectively. The first defendant's summons seeks orders that the proceeding be summarily dismissed or stayed as against the first defendant pursuant to r 23.01(1)(a) of the Rules (on the basis that it is scandalous, frivolous or vexatious) or, alternatively, under r 23.01(1)(b) of the Rules (by reason of an abuse of process of the Court). The third defendant seeks equivalent orders pursuant to r 23.01(1), in addition to orders for summary judgment under ss 62 and 63 of the Civil Procedure Act 2010 (Vic) ('the CPA'), or, alternatively, the striking out of Mr Brown's claim indorsed on the originating motion pursuant to r 23.02 of the Rules (on the basis that it does not disclose a cause of action, is scandalous, frivolous or vexatious or is otherwise an abuse of process). The second defendant does not take any active role in the proceeding and has indicated it will abide by the decision of the Court in accordance with the principle set out in R v Australian Broadcasting Tribunal; Ex parte Hardiman.[3]

3 For the reasons set out below, I will grant the first and third defendants the relief sought in their summonses. I will also order, on the Court's own motion, summary judgment in favour of the second defendant in accordance with s 63(2)(c) of the CPA.

4 On 11 August 2021, Mr Brown was arrested on suspicion of having committed the offences of stalking, use of a carriage service to harass, intimidation of a law enforcement officer, harassing a witness and offences against the Bail Act 1977 (Vic) ('the Bail Act'). Members of Victoria Police then executed a search warrant at Mr Brown's address and seized certain property, including computers and electronic devices. Later that day, Detective Senior Constable ('DSC') Simona Tuica caused 46 charges to be filed against Mr Brown, including stalking, use of a carriage service to harass, and intimidating police (Case No M11690601) ('the primary proceeding'). At this same time, Mr Brown also faced ongoing proceedings in Case No K12359859 which relate to charges arising from separate allegations of harassing a witness.

5 On 12 August 2021, Mr Brown was remanded into custody and processed at the Melbourne Assessment Prison. He entered a 14‑day quarantine period necessitated by COVID-19 pandemic restrictions in accordance with s 112O of the Corrections Act 1986 (Vic). Mr Brown made an application for bail which was opposed by Victoria Police at a hearing on 19 August 2021. The application was adjourned and heard on 20 and 27 August 2021 before Magistrate Bolger, who denied him bail.

6 On 8 September 2021, Mr Brown was transferred to Ravenhall Correctional Centre, a privately operated prison which falls under the jurisdiction of the first defendant. On arrival, he again entered a 14‑day quarantine period. On 28 September 2021, Mr Brown requested, and it was determined, that the charges against him be heard in the committal stream of the Magistrates' Court of Victoria. On 11 November 2021, DSC Tuica issued an additional five charges against Mr Brown, which formed part of a hand-up brief.

7 On 13 January 2022, Mr Brown made an application for, and was granted, bail in relation to Case No K12359859 at the Melbourne Magistrates' Court. Bail was fixed on the basis of Mr Brown's own undertaking and entered on 18 January 2022.[4] Also on 18 January 2022, Mr Brown made a further application for bail in the primary proceeding before Lasry J of this Court. His Honour granted him bail on that day with certain conditions.[5] Consequently, Mr Brown was released from detention on 19 February 2022.

8 On 20 January 2022, there was a committal mention in the primary proceeding in the Melbourne Magistrates' Court. Magistrate Bailin refused an application by Mr Brown to vary his bail conditions and adjourned the matter for a further committal hearing on 20 May 2022. An email sent by Mr Brown on 22 March 2022 to the parties in this proceeding and the Court suggests that he has made, or intends to make, an application to amend the bail conditions imposed by Lasry J.

9 The charges against Mr Brown remain undetermined.

10 As previously mentioned, Mr Brown's judicial review application was commenced on 1 December 2021 by way of originating motion. Accompanying the originating motion was an unsworn affidavit by Mr Brown and summons for directions. The matter was first returnable before the Court on 15 December 2021 before Keith JR. Mr Brown was incarcerated at that time and appeared remotely via the Webex platform. Orders were made to enable the first and third defendants to file any affidavits in opposition to Mr Brown's application, together with any summonses and supporting material, which summonses were to be made returnable on 9 March 2022. The time for compliance with these orders was extended by orders made by Keith JR on 4 February 2022. On 11 February 2022, the Office of the Prothonotary corresponded with Mr Brown by email and rejected an application for judgment in default of appearance by one of the defendants which he sought to file on 9 February 2022 because it was in the incorrect form.

11 When the matter next came back before the Court on 9 March 2022, Mr Brown did not appear. In an email sent by Mr Brown to Ms Natalie Marchesani, a lawyer for the first defendant, which has been provided to the Court, Mr Brown stated that he had received advice that his attendance would constitute a breach of bail. The summonses filed by the first and third defendants were listed before me on 12 April 2022. Judicial Registrar Baker made a number of further orders, including that Mr Brown file and serve: affidavits in response to the relevant defendants' summonses by 25 March 2022; an outline of written submissions in response to the summonses by 8 April 2022; and further particulars on his originating motion as requested by the first defendant by 21 March 2022. In addition, Mr Brown was given leave to amend the originating motion to correctly name the first defendant as the State of Victoria (Department of Justice and Community Safety); the second defendant as the Magistrates' Court of Victoria; and the third defendant as Simona Tuica (Victoria Police).

12 The orders of 9 March 2022 were sent to Mr Brown by the Court on 10 March 2022.[6] He did not comply with the orders.

13 On 22 March 2022, the lawyers acting for the first defendant sent an email to the Court and to the other parties to the proceeding attaching a notice under s 35 of the Charter of Human Rights and Responsibilities Act 2006 (Vic) ('the Charter') in respect of a question of law relating to the application of the Charter or a question with respect to the interpretation of a statutory provision in accordance with the Charter. Mr Brown immediately responded, making general complaint about his bail conditions and alleging endemic corruption in the state of Victoria. Following receipt of the s 35 notice, both the Attorney-General and the Victorian Equal Opportunity and Human Rights Commission have determined not to intervene in the proceeding.

14 On 7 April 2022, my Associate sent an email to the parties embedding a link to enable the hearing on 12 April 2022 to be conducted via the Zoom platform. The email also noted that the Court's previous orders had not been complied with by Mr Brown. Mr Brown did not acknowledge receipt of the email and the Zoom link. Nor was there any automated message generated to indicate that the email was undeliverable. On 11 April 2022, I instructed my Associate to again email the parties, noting that Mr Brown had not responded to the Court's recent email concerning the hearing. The Court requested that the defendants' legal representatives contact Mr Brown by telephone to confirm whether he was proposing to participate in the hearing the following day. Shortly afterwards, Ms Marchesani, lawyer for the first defendant, informed the Court by email that she had since spoken to Mr Brown and that he had apparently indicated he was unable to appear at the hearing on 12 April 2022 because of the current bail conditions that were in place. Mr Brown also apparently indicated that once those matters were resolved, he would resubmit his paperwork. Later that day, I asked my Associate to email the parties seeking advice from the defendants' lawyers about whether they were aware of any bail conditions that would arguably prevent Mr Brown from appearing in the matter or otherwise restrict his meaningful participation in the proceeding. The defendants' lawyers subsequently provided the Court by email with a number of documents recording bail conditions affecting Mr Brown. Mr Brown also responded to the Court's email request but only communicated his responses to the first defendants' lawyers. In two emails sent to Ms Marchesani, he noted three sets of bail conditions that were in place and the reasons for granting bail, but did not explain how any of the bail conditions would impede his ability to participate in the hearing the following day.

15 When the first and third defendants' summons came on for hearing on 12 April 2022, Mr Brown did not appear. Both the first and third defendants submitted that the Court should allow the hearing of their summonses to proceed in Mr Brown's absence. I resolved to allow the relevant defendants' applications to proceed on that day for the following reasons:

(a) it was clear that Mr Brown was aware of the hearing and in receipt of the Zoom link. Throughout the course of the proceeding, Mr Brown had consistently communicated using a specific email address, which was the email address identified on his originating motion and to which the notice of the Court hearing was sent. It was also the email address from which Mr Brown had communicated with the first defendant's lawyers the day prior to the hearing in relation to his bail conditions;

(b) to the extent that Mr Brown believed his bail conditions restricted his ability to engage in the hearing, that view was misguided. Having reviewed the set of bail conditions which are in place,[7] I did not consider that any of those conditions should be read in a way that would prevent Mr Brown from exercising his right to bring, or participate in, a civil proceeding. The bail conditions made in the primary proceeding require, among other things, that Mr Brown 'not communicate in any manner, whether in person or telephone, text message, WhatsApp or any other platform, with any member of Victoria Police, officer or employee of the Government of Victoria or officer of the Office of Public Prosecutions ...' However, Mr Brown's participation at the hearing would not have involved him communicating with any of those parties directly and would have occurred under the Court's supervision in any event;

(c) Mr Brown had ample opportunity to raise any concern about his bail conditions with the Court following the fixing of the first and third defendants' summonses for hearing. No application to adjourn the hearing was ever made by Mr Brown;

(d) given the recent email correspondence from Mr Brown, it can be assumed that he had access to a computer and the internet. There did not appear to be any technological barriers to him participating at the hearing remotely through Zoom. Certainly, none were identified by Mr Brown;

(e) as already mentioned, Mr Brown had not complied with the Court's orders of 9 March 2022 in relation to the filing and service of material prior to the hearing. No explanation was given for his non-compliance; and

(f) the overarching purpose set out in s 7 of the CPA to facilitate the just, efficient, timely and cost-effective resolution of the real issues in dispute was best served by the hearing of the summonses proceeding, notwithstanding Mr Brown's absence.

16 In addition, the third defendant sought leave to amend the summons dated 18 February 2022 to include an application for summary judgment under ss 62 and 63 of the CPA. I allowed the amendment and dispensed with the requirement for filing and service of the summons as amended. I was satisfied that Mr Brown had been on notice of the third defendant's intention to rely on the summary judgment procedure and to amend the summons from when he was served with the third defendant's submissions on or about 1 April 2022. Nothing had been filed in opposition to the application for amendment.

17 In support of the first defendant's summons, reliance is placed upon the affidavit of Ms Melissa Westin affirmed on 18 February 2022 ('the Westin affidavit'), together with its exhibits, along with written submissions dated 1 April 2022. The third defendant relies upon the affidavit of DSC Simona Tuica affirmed on 18 February 2022 ('the Tuica affidavit'), together with its exhibits, along with written submissions dated 1 April 2022.

(1) Subject to any Act, the jurisdiction of the Court to grant any relief or remedy in the nature of certiorari, mandamus, prohibition or quo warranto shall be exercised only by way of judgment or order (including interlocutory order) and in a proceeding commenced in accordance with these Rules.

(2) The proceeding shall be commenced by filing an originating motion naming as defendant -

(a) a person, if any, having an interest to oppose the claim of the plaintiff; and

(b) the court, tribunal or person in respect of whose exercise of jurisdiction or failure or refusal to exercise jurisdiction the plaintiff brings the proceeding.

(3) A person named as defendant in accordance with paragraph (2)(b) who is sued in the capacity of a judicial or public authority or as the holder of a public office shall be described in the originating motion by the name of that authority or the name of that office.

(4) In addition to complying with the requirements of Rule 5.05, the originating motion -

(a) shall state the grounds upon which the relief or remedy specified in the originating motion is sought; and

(b) where any mistake or omission in any judgment, order or other proceeding in respect of which relief or remedy is sought is a ground, shall specify the mistake or omission.

19 The Court's jurisdiction to review the decisions of inferior courts and tribunals is supervisory and not appellate in nature.[8] In a judicial review application made under Order 56 of the Rules, 'the court is concerned with the legality of what was done by the court or tribunal below, and is not concerned with the merits of the decision under review.'[9]

20 A classic explanation of certiorari can be found in the High Court decision of Craig v State of South Australia:[10]

Where available, certiorari is a process by which a superior court, in the exercise of original jurisdiction, supervises the acts of an inferior court or other tribunal. It is not an appellate procedure enabling either a general review of the order or decision of the inferior court or tribunal or a substitution of the order or decision which the superior court thinks should have been made. Where the writ runs, it merely enables the quashing of the impugned order or decision upon one or more of a number of distinct established grounds, most importantly, jurisdictional error, failure to observe some applicable requirement of procedural fairness, fraud and "error of law on the face of the record."[11]

21 Section 62 of the CPA permits a defendant in a civil proceeding to make an application for summary judgment on the ground that the plaintiff's claim or part of that claim has 'no real prospect of success'. Under s 63(1) of the CPA, a court may give summary judgment in a civil proceeding if it is satisfied that a claim, defence or counterclaim or part of the claim, defence or counterclaim, as the case requires, has 'no real prospect of success.' According to s 63(2)(c), a court may give summary judgment under s 63(1) on the court's own motion, if it is satisfied that it is desirable to summarily dispose of the civil proceeding. Section 64 of the CPA confirms that a court may order that a civil proceeding proceed to trial if the court is satisfied that, despite there being no real prospect of success, the matter should not be disposed of summarily because: (a) it is not in the interests of justice to do so; or (b) the dispute is of such a nature that only a full hearing on the merits is appropriate.

22 The case of Lysaght Building Solutions Pty Ltd v Blanalko Pty Ltd[12] explains the meaning of 'real prospect of success' for the purpose of s 63 of the CPA:

(a) the test for summary judgment under s 63 of the [CPA] is whether the respondent to the application for summary judgment has a "real" as opposed to a "fanciful" chance of success;

(b) the test is to be applied by reference to its own language and without paraphrase or comparison with the "hopeless" or "bound to fail" test essayed in General Steel [Industries Inc v Commissioner for Railways (NSW) [1964] HCA 69; (1964) 112 CLR 125 ('General Steel')];

(c) it should be understood, however, that the test is to some degree a more liberal test than the "hopeless" or "bound to fail" test essayed in General Steel and, therefore, permits the possibility that there might be cases, yet to be identified, in which it appears that, although the respondent's case is not hopeless or bound to fail, it does not have a real prospect of success;

(d) at the same time, it must be borne in mind that the power to terminate proceedings summarily should be exercised with caution and thus should not be exercised unless it is clear that there is no real question to be tried and that is so regardless of whether the application for summary judgment is made on the basis that the pleadings fail to disclose a reasonable cause of action (and the defect cannot be cured by amendment) or on the basis that the action is frivolous or vexatious or an abuse of process or where the application is supported by evidence.[13]

23 In addition to the above explanation, I note the following further principles relating to summary judgment applications which are also apposite:

(a) the test for summary judgment is a 'stringent one' which requires a high level of satisfaction on the part of the court;[14]

(b) the inquiry as to whether a case has 'no real prospects of success' extends beyond an analysis of the sufficiency of the pleading;[15]

(c) summary judgment may not be granted merely because of inadequacies in the pleading;[16]

(d) an assessment of whether a judicial review application has no real prospect of success may be made by reference to, among other things, the merits of the application and procedural deficiencies within the application;[17]

(e) as an alternative to granting summary judgment, a pleading (or initiating document) may be struck out with leave to re-plead, provided the court is satisfied that the circumstances show an arguable case can be pleaded;[18] and

(f) summary judgment will be ordered more readily where the matter involves a pure question of law than where there is a disputed question of fact.[19] The summary judgment power is not designed to deal with cases involving complex questions of fact so that a 'mini-trial' on the documents is required to resolve the application.[20]

Where a proceeding generally or any claim in a proceeding -

(a) is scandalous, frivolous or vexatious; or

(b) is an abuse of process of the Court -

the Court may stay the proceeding generally or in relation to any claim or give judgment in the proceeding generally or in relation to any claim.

25 In Hoh v Frosthollow,[21] Derham AsJ provided a useful explanation of the terms 'scandalous' and 'frivolous or vexatious', which appear in both rr 23.01 and 23.02:

(a) Scandalous: Allegations made in a pleading for the purpose only of abusing or injuring the opposite party and allegations which are indecent or offensive are scandalous within the meaning of the rule, and liable to be struck out: Christie v Christie;[22] Coyle v Cuming;[23] Cashin v Craddock.[24]

(b) Frivolous or vexatious: These words in combination have traditionally been used to describe a wide variety of circumstances in which a claim is found to be groundless, or lacking a legal basis or merit.[25]

26 As is apparent, pursuant to rr 23.01 and 23.02, a proceeding may be stayed or dismissed, or a claim struck out where it is an abuse of process of the Court. It has been said that what will constitute an abuse of process is 'insusceptible of a formulation comprising closed categories.'[26] However, an abuse of process will usually manifest where:

(a) the Court's processes are invoked for an illegitimate or collateral purpose;

(b) the use of the Court's procedures is unjustifiably oppressive to a party; or

(c) the use of the Court's procedures would bring the administration of justice into disrepute.[27]

27 A proceeding that is frivolous or vexatious may also be an example of an abuse of process.[28]

28 The question of when a proceeding will be stayed or summarily dismissed as an abuse of process was recently considered by the High Court in Victoria International Container Terminal Ltd v Lunt.[29] The following relevant principles emerge from that case:

(a) the Court has power to stay or summarily dismiss a proceeding in order to prevent injustice where a party has abused the Court's processes;[30]

(b) the Court's power is limited to protecting the integrity of its own processes and to taking action only insofar as is necessary to 'safeguard the administration of justice';[31]

(c) where a proceeding is brought for an 'improper purpose' it is liable to be an abuse of process.[32]

29 An improper or illegitimate purpose will be apparent where proceedings are brought, 'not to prosecute them to a conclusion but to use them as a means of obtaining some advantage for which they were not designed or some collateral advantage beyond what the law offers.'[33] However, regardless of the purpose for instituting and maintaining a proceeding, the proceeding may constitute an abuse of process if it 'can be clearly seen to be foredoomed to fail'[34] or where it will 'inevitably fail.'[35]

30 Further, the use of judicial review proceedings to pre-emptively determine matters which are properly to be considered in ongoing criminal proceedings may amount to an abuse of process, particularly where that criminal process affords rights of appeal.[36] I will return to availability of judicial review in the context of pending criminal proceedings later in these reasons.

Where an indorsement of claim on a writ or originating motion or a pleading or any part of an indorsement of claim or pleading -

(a) does not disclose a cause of action or defence;

(b) is scandalous, frivolous or vexatious;

(c) may prejudice, embarrass or delay the fair trial of the proceeding; or

(d) is otherwise an abuse of the process of the Court -

the Court may order that the whole or part of the indorsement or pleading be struck out or amended.

32 Under r 23.02, objection is taken to the manner of expression of the claim or defence in the indorsement of claim or pleading.[37] Where a defendant contends that a statement of claim (or indorsement of claim) should be struck out because it fails to disclose a cause of action, it is necessary for the defendant to establish it would be futile to allow the claim to progress because it raises a claim that has no real prospect of success in the sense of being 'fanciful'.[38] In this way, there is an overlap in the considerations which arise in an application for summary judgment.[39] Further, the effect of striking out a claim where no right to re-plead is granted is to bring the proceeding to a peremptory end.[40]

33 In Wheelahan v City of Casey (No 12),[41] Dixon J comprehensively reviewed the authorities on strike out under r 23.02. The principles extracted by his Honour most relevant to the present proceeding include the following:[42]

(b) the function of a pleading in civil proceedings is to alert the other party to the case they need to meet (and hence satisfy basic requirements of procedural fairness) and further, to define the precise issues for determination so that the court may conduct a fair trial;

(d) ... the pleading must be presented in an intelligible form - it must not be vague or ambiguous or inconsistent. Thus a pleading is "embarrassing" within the meaning of r 23.02 when it places the opposite party in the position of not knowing what is alleged;

(g) a pleading which contains unnecessary or irrelevant allegations may be embarrassing ...

(h) it is not sufficient to simply plead a conclusion from unstated facts. In this instance, the pleading is embarrassing;

(o) the power to strike out a pleading is discretionary. As a rule, the power will be exercised only when there is some substantial objection to the pleading complained of or some real embarrassment is shown; and

(p) if the objectionable part of the pleading is so intertwined with the rest of the pleading so as to make separation difficult, the appropriate course is to strike out the whole of the pleading.

34 In Babcock & Brown DIF III Global Co-Investment Fund LP & Anor v Babcock & Brown International Pty Ltd & Ors (No 2),[43] Hargrave J (as his Honour then was) further explained:

... the Court should consider the pleading under a challenge as a whole and adopt a practical case management approach to pleading objections, rather than accepting technical objections when the true nature of the case to be met is clear from reading the pleading as a whole and there is no embarrassment to filing a responsive pleading. Such an approach accords with the discretionary nature of the power to strike out and with the overarching purpose under the Civil Procedure Act. However, in cases alleging dishonesty or fraud, precise pleadings with full particulars are required.[44]

35 As regards applications for judicial review commenced by originating motion, Bell J noted in Rich v Secretary, Department of Justice[45] that it is generally necessary to identify with precision:

• the person whose decision or conduct is being challenged

• the decision or conduct being challenged

• the legal and factual basis of the challenge, including the grounds on which judicial review is sought
• the relief by way of judicial review which is being sought against the person, by reference to the legal grounds of the challenge to the relevant decision or conduct of the relevant defendant.

36 Lastly, according to r 23.04 of the Rules, whilst affidavit evidence may be relied upon in support of an application for stay or summary dismissal under r 23.01(1), no affidavit material is admissible in an application for strike out under r 23.02.

Overview of Mr Brown's judicial review application

37 Before turning to the applications made by the relevant defendants, it is appropriate to say something of the structure and content of the documents that have been filed by Mr Brown in the proceeding.

38 Mr Brown's originating motion is 20 pages long and makes a number of claims and allegations against various persons, including the named defendants. The claims made by Mr Brown include that:

(a) the charges, arrest, search warrant, remand, warrants and opposition to bail and his detainment in custody by the first defendant were 'underpinned, facilitated and ... obtained by fraud';[46]

(b) his arrest involved the unreasonable use of force by unidentified and aggressive individuals with the intention of advancing the ideological cause of his alleged victims and the 'gang called Victoria Police' and terrorising Mr Brown. Additionally, this alleged conduct was undertaken with the intention of causing him serious physical harm, imposing a serious risk to his health and safety and interfering with property used in his employment;[47]

(c) Magistrate Bolger misrepresented matters pertaining to personal service of documents on Mr Brown by Victoria Police and allowed a prosecutor to conceal his identity when opposing bail;[48]

(d) Magistrate Bolger 'advertedly [sic] assisted' an informant in refusing to answer questions, or to comply with an oath taken to give truthful evidence;[49]

(e) DSC Tuica misrepresented multiple material facts by words and conduct, by false and misleading allegations and by the concealment of what should have been disclosed so as to deceive the Magistrates' Court;[50]

(f) the first defendant denied Mr Brown his right to adequate time and facilities to prepare a legal defence in contravention of s 25(2)(b) of the Charter;[51] and

(g) the first defendant 'advertedly [sic] hindered' him in his lawful process by returning to sender legal books, documents, reference materials and evidence required to 'facilitate his lawful process and defence.'[52]

39 In view of his claims, Mr Brown seeks orders in the form of certiorari to quash certain decisions and actions taken in his criminal proceedings as a consequence of fraud. Whilst the decisions and conduct the subject of Mr Brown's challenge are not necessarily identified with precision, adopting a generous reading of Mr Brown's application, it appears that they include:

(a) the decision by members of Victoria Police to arrest him;

(b) the decision by members of Victoria Police to 'issue [a] search warrant to [his] home';

(c) the decision by members of Victoria Police to seize property owned by the plaintiff and his friend from the plaintiff's home on 11 August 2021 during the execution of the warrant;

(d) the decisions by DSC Tuica and/or members of Victoria Police to prepare and file charges against him;

(e) the alleged inadequate service of the charges on him;

(f) the decision by DSC Tuica and/or members of Victoria Police to oppose his bail;

(g) the decision by the second defendant to deny him bail;

(h) the conduct of the first defendant to return to Mr Brown's support person legal books, documents, reference materials and evidence needed by Mr Brown 'to facilitate his lawful process and defence'; and

(i) the decisions and conduct of the defendants in placing and holding him on remand.

40 Mr Brown also seeks an order for the quashing of all pending criminal charges against him, his immediate release, and the return of all property to him.[53] He does not, however, seek any declaratory relief or relief in the nature of mandamus requiring any defendant to do any specific act or perform a particular function according to law.

41 In addition, 16 pages of the originating motion are devoted to a series of questions for the Court to consider in relation to the circumstances of his criminal proceedings. Those questions include whether DSC Tuica personally served the charges on Mr Brown in accordance with ss 16 and 391 of the Criminal Procedure Act 2009 (Vic) ('Criminal Procedure Act') and whether she explained in detail the nature and reasons for the charges in compliance with s 25(2)(a) of the Charter.

42 Mr Brown's supporting affidavit is a 31 page loosely constructed narrative expanding upon the claims made in the originating motion and setting out numerous other allegations of fraud against various persons who are not themselves named as parties to the application. Some of those allegations are historic and it is unclear how they relate to the criminal proceedings on foot.

Application by first defendant for stay or dismissal

43 There are numerous reasons as to why Mr Brown's application for judicial review should be disposed of under r 23.01 of the Rules, insofar as the application relates to the first defendant.

44 First, I accept the first defendant's submission that Mr Brown has already taken steps to overcome the impugned decision. As already noted, Mr Brown alleges in paragraph 11 of the originating motion that the first defendant 'advertedly [sic] hindered' him by returning to sender legal books, documents, reference materials and evidence he requires 'to facilitate his lawful process and defence'. Whilst it is unclear which aspect of the criminal proceedings Mr Brown is referring to, insofar as he is referencing his application for bail or the earlier decision to refuse bail, it is apparent that Mr Brown has now obtained bail and is no longer held on remand in custody.

45 As a matter of discretion, a court may refuse relief in the nature of certiorari where there is a lack of utility in doing so.[54] Further, an order in the nature of certiorari is not available in respect of the exercise of power or purported exercise of power the legal effect of which is moot or spent.[55] As the Full Court of the Federal Court stated in Transport Workers' Union of New South Wales v Australian Industrial Relations Commission:[56]

... Both mandamus and certiorari are remedies to which there is no absolute entitlement. They may be refused, in the discretion of the court, particularly when it would be futile to grant them, because their grant would achieve nothing, or nothing of sufficient significance to warrant the grant of a remedy. They may also be refused on the ground that some other course exists which would achieve the result sought to be achieved by the remedies.

46 It is apparent that the relief Mr Brown seeks as against the first defendant is futile. Events have overtaken his application. Because Mr Brown seeks to quash an apparent decision to deny him access to legal resources necessary for him to make an application for bail in circumstances where bail has since been granted, the continuation of his application against the first defendant is both frivolous and vexatious. The maintenance of this aspect of the proceeding is also an abuse of process because it will inevitably fail.

47 Secondly, according to the Westin affidavit, whilst Mr Brown was in custody between 12 August 2021 and 19 January 2022 he was in fact granted access to resources in accordance with the Commissioner's Requirement - Prison Libraries and Prisoner Access to Legal Resources Policy. Aside from the two periods of quarantine, he did in fact exercise his rights to access legal resources. This evidence is uncontradicted by Mr Brown.

48 Thirdly, Mr Brown has not clearly explained how any action by the first defendant in hindering his access to legal resources negatively impacted upon or unfairly prejudiced his bail application. The fact that he was ultimately able to obtain bail suggests an ability on his part to effectively articulate arguments in support of such an application.

49 Fourthly, despite being ordered to do so, Mr Brown has not provided the first defendant with further particulars of the claims at paragraphs 10-11, and the question posed at paragraph 50 of the originating motion concerning the assertion that the first defendant had hindered Mr Brown's 'lawful process' by returning to sender legal books, documents, reference materials and evidence sent to Mr Brown whilst incarcerated which he required to facilitate his 'lawful process and defence'.[57] Mr Brown was specifically requested to provide particulars of what legal process or defence he said was being hindered; namely his preparation for the bail hearing or the defence of the criminal proceedings generally. He was also asked to identify the date legal materials were allegedly returned to sender by the first defendant. In the absence of those particulars, this aspect of Mr Brown's application is unhelpfully vague, lacks a legal basis, and is thereby vexatious.

50 Lastly, now that Mr Brown is no longer held in custody, the first defendant is no longer a relevant party to the pending criminal proceedings. It is difficult to see how the actions of the first defendant have any bearing on the pending criminal proceedings. Consequently, the maintenance of Mr Brown's judicial review application against the first defendant serves no purpose and is frivolous and vexatious.

51 The first defendant also submits that the judicial review application should be stayed or dismissed as an abuse of process because it is being used by Mr Brown for the improper purpose of serving as a collateral attack on the pending criminal charges. Further, it is said that the matters raised in this proceeding could otherwise be litigated in the criminal proceedings or appealed through the usual processes. Given the confined nature of the claims against the first defendant, and the Court's disposition to the first defendant's summons, it is convenient to deal with those matters in the context of the third defendant's application (where they are also raised).

52 Rule 23.01 contemplates the granting of a stay or the giving of judgment in the proceeding generally or in relation to any claim. The outcomes are expressed in the alternative. In the absence of a clear election by the first defendant as to which form of order is sought, it is preferable in this instance to simply order the dismissal of the application as against the first defendant.

Application by third defendant for summary judgment

53 In my view, summary judgment should be granted under ss 62 and 63 of the CPA in favour of the third defendant for the following reasons:

(a) in relation to the decision to arrest Mr Brown, which Mr Brown says involved the unreasonable use of force and was actuated by fraud, none of the arresting officers are named as defendants to the proceeding. Accordingly, their decisions are not the subject of legitimate challenge. Further, the circumstances of Mr Brown's arrest are deposed to by DSC Tuica who explains that Mr Brown was arrested on suspicion of having committed the offences of stalking, use of a carriage service to harass, intimidation of a law enforcement officer, harassment of a witness, and offences against the Bail Act. Mr Brown has not disputed this evidence. Nor has he particularised how his arrest was motivated by fraud on the part of the arresting officers or how it was undertaken with the 'intention of advancing the ideological cause of the alleged victims and the gang called Victoria Police.' It is unclear what ideological cause he is referring to;

(b) similarly, the officers who sought and obtained the warrant to search Mr Brown's premises and the Magistrate who signed the search warrant are not named as defendants to the proceeding and their decisions are currently not the subject of challenge. Further, Mr Brown has not adduced any evidence to support his claim that the warrant was issued in fraudulent circumstances. For example, he has not put forward any compelling evidence to show the Magistrate who issued the warrant was induced by fraud, a lack of good faith, or a material misstatement of fact.[58] He does not identify what the Magistrate was told by the officer who obtained the warrant, or seek documents from the officer to illuminate that question, so as to identify any fraud or misrepresentation;[59]

(c) as regards the preparation and filing of charges against Mr Brown, there is clear authority that these decisions have the character of prosecutorial discretion and are simply beyond the scope of judicial review.[60] As Gaudron and Gummow JJ explained in Maxwell v The Queen:

The integrity of the judicial process - particularly, its independence and impartiality and the public perception thereof - would be compromised if the courts were to decide or were to be in any way concerned with decisions as to who is to be prosecuted and for what.[61]

(d) to the extent Mr Brown seeks to quash the decision of the third defendant to oppose his bail, such relief would be futile because he has since been granted bail. The initial decision to deny him bail no longer has any continuing legal effect or consequence;[62]

(e) the broad-sweeping allegation made by Mr Brown that the charges, arrest, search warrant, remand, warrants and opposition to bail and his detainment in custody by the first defendant were 'underpinned, facilitated and ... obtained by fraud' is unparticularised and unsupported by evidence. Mr Brown refers to a number of definitions of fraud[63] and correctly cites authorities for the propositions that a judgment of a court or order of a minister cannot stand if obtained by fraud[64] and that certiorari may be available where the exercise of jurisdiction is procured by fraud.[65] However, these are general statements of principle only. It is insufficient for an applicant for judicial review to simply assert (as Mr Brown has essentially done in the originating motion) that fraud has affected the decision-making process in an abstract sense;[66]

(f) although Mr Brown's supporting affidavit purports to set out more specific aspects of the fraud he alleges has occurred, the content of the affidavit is largely concerned with disputing various facts relating to his arrest and criminal proceedings, including matters relevant to his application for bail, Magistrate Bolger's conduct of the bail hearing, and issues relating to service of his charges which he has agitated as part of the committal process and which are addressed in the Tuica affidavit. None of these matters are capable of rising to the level of fraud. They are also expressed at such a level of generality so as to be incapable of attracting the remedy of certiorari. In short, the allegations of fraud against the named defendants and numerous other persons referred to in Mr Brown's affidavit appear to have no proper basis. The same can be said in respect of the non-specific allegations of misrepresentation and deceit made in the originating motion;

(g) Mr Brown's claims are also ambiguous and uncertain because they fail to identify with sufficient precision the relevant decision-makers in relation to the decisions or actions sought to be impugned, and instead refer to the conduct of various persons and organisations not named as defendants, including Judges of this Court, the former Attorney-General and now Minister for Tourism, Sport & Major Events, Mr Martin Pakula, a solicitor within the Victorian Government Solicitor's Office, the Police Registration and Services Board, and various members of Victoria Police.[67] Mr Brown also fails to name the correct decision-makers as defendants to this proceeding. Although the Court gave Mr Brown leave to amend his originating motion to correctly name the defendants whose decisions he is seeking to impugn, he has not done so. The failure to correctly name the relevant decision-makers as defendants means Mr Brown's judicial review application fails to comply with r 56.01 of the Rules;

(h) whilst Mr Brown makes passing reference to the Charter in his originating motion,[68] he does not identify whether there has been a breach of s 38(1) of the Charter by a public authority in respect of Charter obligations and, if so, how. Section 38(1) provides that that it is 'unlawful for a public authority to act in a way that is incompatible with a human right or, in making a decision, to fail to give proper consideration to a relevant human right', subject to certain exceptions. The procedural limb of s 38(1) requires public authorities, when making a decision, to give proper consideration to a relevant human right,[69] whereas the substantive limb of s 38(1) compels public authorities to act in a way that is compatible with a human right.[70] It is unclear whether Mr Brown contends there has been a breach of the procedural limb, substantive limb, or both aspects of the provision;

(i) some of the issues raised in the originating motion appear to be matters which could more appropriately be raised as a claim in tort, including, for example, the allegation that police officers who arrested Mr Brown used unreasonable force which might otherwise give rise to a claim of assault;

(j) as a general principle, judicial review 'should not be enlisted in ways that may interfere with the progress of an ordinary criminal proceeding', save for where there are special or exceptional circumstances.[71] Many of the matters raised by Mr Brown in his judicial review application could be agitated by him in his criminal proceedings or appealed through the usual processes available to him. For example, it remains open to Mr Brown to argue in his criminal proceedings that evidence obtained under the relevant search warrant should be excluded pursuant to s 138 of the Evidence Act 2008 (Vic) on the basis that it was obtained improperly or in contravention of an Australian law or as a consequence of impropriety. Again, to the extent Mr Brown takes issue with the framing of the charges against him, the evidence supporting those charges and the manner in which they were served, they are all matters he can raise in the criminal proceedings. There are no special or exceptional reasons why he should not take that course or why judicial review is a more appropriate avenue to ventilate his concerns; and

(k) by making complaint in this judicial review application about various decisions and procedural actions taken in his criminal proceedings, Mr Brown is using Order 56 so as to pre-emptively determine the merits of aspects of the criminal proceedings which are pending against him. But more significantly, by explicitly seeking to quash all pending criminal charges against him, he is attempting to determine the outcome of the criminal proceedings themselves. As a matter of discretion, relief would likely be refused in this proceeding because it would impermissibly fragment the workings of the criminal courts.[72]

54 Having regard to all of the above matters, it is apparent that Mr Brown's judicial review application as it relates to the third defendant has no real prospects of success. It does not disclose any serious question to be tried and the originating motion and accompanying affidavit fail to disclose a reasonable cause of action. There is confusion as to the identity of the decision-makers whose decisions are impugned and the grounds on which review is sought are not sufficiently clear or particularised. Moreover, there are sound reasons why, as a matter of discretion, any relief should be refused, including for lack of utility, the relevant decision no longer having continuing legal effect, and the risk of fragmenting or interfering with the criminal proceedings which are on foot. I am not satisfied that any of these manifest problems can be cured by amendment. In any event, whilst it was open to Mr Brown to have proposed amendments in response to the summonses filed by the first and third defendants, he did not do so.

55 Further, on the material before the Court there are no specific factual or evidentiary disputes that would necessitate a trial in this case.

56 Summary judgment will be granted in favour of the third defendant accordingly.

Application by third defendant for stay or dismissal and/or strike out

57 It is also appropriate to order in the alternative that the originating motion be summarily dismissed as against the third defendant pursuant to r 23.01(1)(a) of the Rules (on the basis that it is scandalous, frivolous or vexatious) or r 23.01(1)(b) of the Rules (by reason of an abuse of the process of the Court). Further, and in the alternative, under r 23.02 of the Rules, Mr Brown's claim indorsed on the originating motion should be struck out (on the basis that it does not disclose a cause of action, is scandalous, frivolous or vexatious or is otherwise an abuse of process).

58 As a result of the significant procedural deficiencies I have referred to and the absence of substantive merit, it is clear the proceeding will inevitably fail and is therefore an abuse of process. The proceeding is also an abuse of process because it is being used as a vehicle to pre-emptively determine matters which might otherwise be considered in Mr Brown's ongoing criminal proceedings.[73]

59 Insofar as Mr Brown is seeking to review matters concerning the decision to oppose his application for bail, this aspect of the proceeding is futile because bail has since been granted. Accordingly, this aspect of the application is frivolous, vexatious and another instance of an abuse of process.

60 Mr Brown's originating motion and supporting affidavit is replete with scandalous references to: police officers as 'terrorists' or 'terrorist gang members';[74] police officers being engaged in acts of terrorism against Mr Brown;[75] 'the gang called Victoria Police'; 'the gang of pedophile protecting terrorists called Victoria Police';[76] DSC Tuica as being a 'terrorist gang member';[77] and 'no "Justice" Christopher Beale' as being a 'supporter of [Victoria Police] terrorists'.[78] His material also makes unsubstantiated allegations of perjury by the third defendant[79] and the former Attorney-General[80] and unparticularised allegations of fraud and corruption against the defendants, members of Victoria Police, and a number of judicial officers.[81] The scandalous nature of Mr Brown's material warrants, of itself, the summary dismissal of his application.

61 The striking out of the originating motion under r 23.02 of the Rules is justified for all of the abovementioned reasons, including its scandalous nature, and because it fails to disclose a cause of action in accordance with the requirements of Order 56 and the test laid out by Bell J in Rich v Secretary, Department of Justice. The relevant decision-makers are not clearly identified, or are wrongly identified, and the legal and factual basis of challenge to the decisions and the grounds on which review is sought are not identified with any real degree of precision. Further, the originating motion does not alert the defendants to the case they need to meet or properly define the issues for determination. Instead, it includes numerous questions which are not grounds of review and makes unparticularised and unsubstantiated allegations of fraud in an abstract sense against the defendants along with numerous other persons who are not named as defendants. In relation to matters arising under the Charter, Mr Brown fails to articulate whether any of the defendants have breached the procedural limb or substantive limb of s 38(1) (or both limbs).

62 The deficiencies in the originating motion are so extensive, it is neither necessary nor efficient to identify each and every offending paragraph. The objectionable parts of the originating motion are so intertwined with the balance of the document that separation is difficult, if not impossible. The entire originating motion should be struck out.

63 Where a pleading is struck out under r 23.02 of the Rules, the relevant party will often be given leave to amend the pleading, or where the whole pleading is struck out, leave to serve another pleading.[82] However, leave to amend will be refused if the amendment would be futile or pointless.[83] I have already explained that Mr Brown would likely be disentitled to any relief as a matter of discretion because aspects of his claim are futile and impermissibly cut across his criminal proceedings. Further, given Mr Brown's non-engagement with the relevant defendants' summonses, and his failure to comply with Court orders, the Court has no confidence that Mr Brown will prepare an application that complies with the Rules. I will order in the alternative that Mr Brown's claim indorsed on the originating motion will be struck out with no right of reinstatement or amendment.

Summary judgment for second defendant on Court's own motion

64 Given the Court's disposition towards the claims against the first and third defendants, it is appropriate to also consider the remaining claims against the second defendant. In his originating motion, Mr Brown makes various claims concerning Magistrate Bolger's conduct of his bail hearings, including that the learned Magistrate misrepresented matters pertaining to personal service of documents on Mr Brown by Victoria Police, allowed a prosecutor to conceal his identity when opposing bail, and permitted an informant to refuse to answer questions or to comply with an oath taken to give truthful evidence. In his supporting affidavit, Mr Brown goes further and accuses Magistrate Bolger of: interfering in his cross-examination of DSC Tuica and answering questions put to the informant in what Mr Brown says 'appeared to be attempts to pervert the administrative course of public justice'; perpetrating a 'clear act of fraud' by concealing alleged non-compliance with ss 16 and 391 of the Criminal Procedure Act in relation to the requirement for personal service of his charges; and engaging in fraud in making her decisions and orders by her 'false representation of a matter of fact, by her words and conduct.'[84] Mr Brown contends that the alleged conduct of the Magistrate 'constitutes solid and indisputable ground [sic] upon which the order in the nature of certiorari quashing the relevant decision(s) and order(s) should be made.'

65 I have previously explained why I will order, by way of alternative relief in the application made by the third defendant, that the claim indorsed on the originating motion be struck out in its entirety. However, in all the circumstances, and for the sake of completeness, it is also desirable to grant the second defendant summary judgment on the Court's own motion pursuant to s 63(2)(c) of the CPA because the claim made against that defendant has no real prospects of success.

66 The claims made in relation to the second defendant suffer from many of the same problems as the claims against the other defendants. In particular, the broad allegations of fraud against Magistrate Bolger have no proper basis because they are insufficiently particularised and are articulated only at a high level of generality without properly identifying the legal and factual basis of the challenge to the Magistrate's decision and orders. In other words, there is no real question to be tried. Further, Mr Brown has not put forward any convincing evidence to show Magistrate Bolger's actions and decisions were induced by fraud, a lack of good faith, or a material misstatement of fact. Moreover, even if an order in the nature of certiorari was available on the facts, the quashing of the Magistrate's decision to deny Mr Brown bail would be futile because Mr Brown has since obtained bail and the Magistrate's decision no longer has any continuing legal effect or consequence.[85] Accordingly, the continuation of the remaining part of the application against the second defendant would be frivolous and vexatious and/or an abuse of process. The problems inherent in the claims against the second defendant go beyond inadequacies in the originating motion and cannot be cured by amendment.

67 In light of the above reasons, there will be orders that the proceeding be summarily dismissed as against the first defendant, pursuant to r 23.01(1)(a) and/or r 23.01(1)(b) of the Rules. There will also be summary judgment in favour of the second and third defendants. In the alternative, and to the extent necessary, there will be orders that the originating motion be summarily dismissed as against the third defendant pursuant to r 23.01(1)(a) and/or r 23.01(1)(b) of the Rules and that the claim indorsed on the originating motion should be struck out in its entirety in accordance with r 23.02 of the Rules.

68 At the conclusion of the hearing, or shortly thereafter, the first and third defendants confirmed that they do not pursue a costs order against Mr Brown. I therefore make no order as to costs.

69 I will ask the first and third defendants to submit proposed orders to give effect to these reasons.

CORRECTIONS VICTORIA/DEPARTMENT OF JUSTICE (KATE FITZGERALD)

[1] Paragraph [1] of the originating motion filed 1 December 2021 ('the originating motion').

[3] [1980] HCA 13; (1980) 144 CLR 13. See letter from the Magistrates' Court of Victoria dated 13 December 2021, a copy of which has been placed on the Court file.

[4] See affidavit of Melissa Westin, affirmed on 18 February 2022, [14] and Magistrates' Court remand warrant dated 13 January 2022 recording bail conditions which has been placed on the Court file.

[5] See Re Brown [2022] VSC 166.

[6] A copy of the email has been placed on the Court file.

[7] Copies of which have been placed on the Court file with their accompanying emails.

[8] Gurappaji v Tonkin [2015] VSC 177; (2015) 45 VR 324, 329, [24] (Derham AsJ).

[10] [1995] HCA 58; (1995) 184 CLR 163.

[11] Ibid 175-6 (Brennan, Deane, Toohey, Gaudron and McHugh JJ).

[12] [2013] VSCA 158; (2013) 42 VR 27.

[13] Ibid 40, [35] (Warren CJ and Nettle JA, as his Honour then was).

[14] Russell v Wisewould Mahony Lawyers [2018] VSCA 125, [8]; Crowther v Whitehorse City Council (No 2) [2018] VSC 344, [41] (Zammit J, now Incerti J) ('Crowther').

[15] Manderson M & F Consulting (A Firm) v Incitec Pivot Ltd [2011] VSCA 444; (2011) 35 VR 98, 107,[32] (Redlich JA and Judd AJA).

[16] Feiglin v Ainsworth (No 2) [2014] VSC 376, [45] (Elliott J).

[18] Avery v Manno (2020) 62 VR 281, 292, [30] (Derham AsJ), citing Permanent Custodians Ltd v Sanders [2017] VSC 516, [29] (Matthews JR, as her Honour then was).

[19] Re Demediuk [2016] VSC 587, [18] (McMillan J); Mutton v Baker [2014] VSCA 43, [19] (Whelan and Santamaria JJA).

[20] Three Rivers District Council v Bank of England (No 3) [2003] 2 AC 1 [95] (Lord Hope of Craighead); Spencer v Commonwealth [2010] HCA 28; (2010) 241 CLR 118 [21], [26] (French CJ and Gummow J).

[21] Hoh and ors v Frosthollow Pty Ltd and ors [2014] VSC 77 ('Hoh v Frosthollow') (Derham AsJ).

[22] [1873] UKLawRpCh 36; (1873) LR 8 Ch App 499.

[23] (1879) 40 LT 455.

[24] [1876] UKLawRpCh 272; (1876) 3 Ch D 376.

[25] Hoh v Frosthollow [12]. See also Neil J Williams (LexisNexis Butterworths, 3rd ed) Civil Procedure Victoria, [23.02.30].

[26] Batistatos v Roads and Traffic Authority of New South Wales [2006] HCA 27; (2006) 226 CLR 256, 265, [9] (Gleeson CJ, Gummow, Hayne and Crennan JJ).

[27] Rogers v The Queen [1994] HCA 42; (1994) 181 CLR 251, 286 (McHugh J); PNJ v The Queen [2009] HCA 6; (2009) 252 ALR 612, 613-14, [3] (French CJ, Gummow, Hayne, Crennan and Kiefel JJ); Avery v Manno (2020) 62 VR 281, 293, [32] (Derham AsJ). See also Kinglake Friends of Forest Inc v VicForests (BMZ 2) [2021] VSC 473, [47] (Richards J).

[28] Walton v Gardiner (1993) 177 CLR 378, 393 (Mason CJ, Deane and Dawson JJ) ('Walton v Gardiner').

[29] [2021] HCA 11; (2021) 388 ALR 376.

[30] Ibid 381, [18] (Kiefel CJ, Gageler, Keane & Gordon JJ).

[31] Ibid 381, [19], citing Strickland v Commonwealth Director of Public Prosecutions (2018) 266 CLR 325 and Moti v The Queen [2011] HCA 50; (2011) 245 CLR 456.

[33] Williams v Spautz [1992] HCA 34; (1992) 174 CLR 509, 526-7 (Mason CJ, Dawson, Toohey and McHugh JJ) citing In re Majory (1955) Ch. 600, 623-4 and Goldsmith v Sperrings Ltd [1977] 1 WLR 478, 498-9; [1917] 2 All ER 566, 581-2; Varawa v Howard Smith Co Ltd (1911) 13 CLR 91.

[34] Walton v Gardiner [1993] 177 CLR 378 (Mason CJ, Deane and Dawson JJ).

[35] R v Smith [1995] VicRp 2; [1995] 1 VR 10, 15 (Brooking J).

[38] Uber Australia Pty Ltd v Andrianakis [2020] VSCA 186; (2020) 61 VR 580, 594, [35] (Niall, Hargrave and Emerton JJA) ('Uber Australia').

[39] 5 Boroughs NY Pty Ltd v State of Victoria; Roberts v State of Victoria [2021] VSC 785, [10] (J Dixon J).

[40] CA & CA Ballan Pty Ltd v Oliver Hume (Australia) Pty Ltd [2017] VSCA 11; (2017) 55 VR 62, [25] (Redlich, Tate and Ferguson JJA).

[41] [2013] VSC 316 ('Wheelahan'). The principles set out by Dixon J in Wheelahan were approved by the Court of Appeal in Uber Australia 599, [50] (Niall, Hargrave and Emerton JJA).

[43] [2017] VSC 556.

[44] Ibid [15], as endorsed by the Court of Appeal in Uber Australia, [52].

[45] [2010] VSC 390, [50] (Bell J) ('Rich v Secretary, Dept of Justice').

[52] Ibid [11]. At [50], Mr Brown suggests that the first defendant sent the relevant material back to his support person.

[54] Mann v Medical Practitioners Board of Victoria [2004] VSCA 148, [17] (Hansen AJA, with whom Chernov and Nettle JJA agreed); JJ Richards & Sons Pty Ltd v Fair Work Australia [2012] FCAFC 53; (2012) 201 FCR 297, [83] (Flick J).

[55] Wingfoot Australia Partners Pty Ltd v Kocak [2013] HCA 43; (2013) 252 CLR 480, 492, [25] (French CJ, Crennan, Bell, Gageler and Keane JJ) ('Wingfoot Australia').

[56] [2008] FCAFC 26; (2008) 166 FCR 108, 134, [55] (Gray and North JJ).

[57] The particulars were first requested by email dated 14 February 2022 (see Exhibit MSW-5 to the Westin affidavit).

[58] See Price v Elder [2000] FCA 133; (2000) 97 FCR 218, 221, [12] (Black CJ, Sackville and Emmett JJ; Fiore v Magistrates' Court of Victoria [2020] VSC 92, [41]-[43], [62] (Niall JA) ('Fiore') (referring to fraud in the public law sense described in SZFDE v Minister for Immigration and Citizenship [2007] HCA 35; (2007) 232 CLR 189), upheld on appeal in Fiore v Magistrates' Court of Victoria [2020] VSCA 314.

[60] Maxwell v The Queen (1996) 184 CLR 501, 534 (Gaudron and Gummow JJ) ('Maxwell v The Queen'); Likiardopolous v The Queen [2012] HCA 37; (2012) 247 CLR 265, [37] (Gummow, Hayne, Crennan, Kiefel and Bell JJ) ('Likiardopolous v The Queen').

[61] Maxwell v R 534 (Gaudron and Gummow JJ), citing Barton v The Queen [1980] HCA 48; (1980) 147 CLR 75, 94-5: Jago v District Court (NSW) [1989] HCA 46; (1989) 168 CLR 23, 38-9, 54 (Brennan J), at 77-8 (Gaudron J); Williams v Spautz [1992] HCA 34; (1992) 174 CLR 509, 548 (Deane J); Ridgeway v The Queen (1995) 184 CLR 19, 74-5 (Gaudron J).

[62] Wingfoot Australia 492, [25] (French CJ, Crennan, Bell, Gageler and Keane JJ).

[63] Including the definition of fraud used in the Australian Law Dictionary (3rd ed) as being '[a] type of dishonesty calculated to obtain advantage ... by some wrongful means.'

[64] Lazarus Estates Ltd v Beasley [1956] 1 QB 702, 712 (Denning LJ) ('Lazarus Estates Ltd').

[65] Re his Honour Judge Hammond & Ors; Ex parte Roddan (1996) 17 WAR 50, 56 (Malcolm CJ); R v Gillyard [1848] EngR 619; (1848) 12 QB 527; Lazarus Estates Ltd, 712 (Denning LJ).

[66] Minister for Home Affairs v DUA16 [2020] HCA 46; (2020) 385 ALR 212, 218, [18] (Kiefel CJ, Bell, Keane, Gordon and Edelman JJ).

[67] See, by way of example, [2], [19], [40]-[48], [51]-[52], [55]-[62] of the originating motion.

[68] In the originating motion, Mr Brown variously refers at [10], [16] and [79] to s 25(2)(a) of the Charter (the requirement to be informed promptly and in detail of the nature and reason for the charge) and s 25(2)(b) (the requirement to have adequate time and facilities to prepare a defence and to communicate with a lawyer).

[69] See Thompson v Minogue [2021] VSCA 358, [79] (Kyrou , McLeish and Niall JJA).

[70] Bare v Independent Broad-Based Anti-Corruption Commission [2015] VSCA 197; (2015) 48 VR 129 (Tate JA).

[71] Crowther [53], affirming the reasoning of Derham AsJ in the judgment the subject of appeal in Crowther v Whitehorse City Council [2017] VSC 594 [30] and further citing Rozenes v Beljajev [1995] VicRp 34; [1995] 1 VR 533; Chief Executive Officer of Customs v Jiang [2001] FCA 145; (2001) 111 FCR 395; Clarkson v Director of Public Prosecutions [1990] VicRp 65; [1990] VR 745; and Peniche v Vanstone [1999] FCA 916.

[74] See [7]-[17] of Mr Brown's supporting affidavit.

[76] See [31] of Mr Brown's supporting affidavit.

[77] See [7]-[17], [21]-[22] of Mr Brown's supporting affidavit.

[78] See [32] of Mr Brown's supporting affidavit.

[79] See [7]-[18] of Mr Brown's supporting affidavit.

[80] See [40] of the originating motion.

[81] See [2]-[8] of the originating motion and Mr Brown's supporting affidavit generally.

[82] See Turner v Bulletin Newspaper Co Pty Ltd [1974] HCA 25; (1974) 131 CLR 69; Household Financial Services v Braybrook [1991] VicRp 95; [1991] 2 VR 577, 584 (Young CJ and McDonald J); Fenn v Australian Broadcasting Corp [2017] VSC 486; Business Service Brokers Pty Ltd v Optus Mobile Pty Ltd [2021] VSC 310.

[83] Polar Aviation Pty Ltd v Civil Aviation Safety Authority (No 4) [2011] FCA 1126; (2011) 203 FCR 293; Udowenko v Chief Executive Officer and Board of Directors of St George Bank - A division of Westpac Banking Corp (No 2) [2011] NSWSC 1122.

[84] See [19]-[21] of Mr Brown's supporting affidavit.

[85] Wingfoot Australia 492, [25] (French CJ, Crennan, Bell, Gageler and Keane JJ).