Plaintiff v Defendants

2 On 8 August 2023, on Mr Kunc's election, the Magistrates' Court of Victoria heard both sets of infringement allegations against Mr Kunc. In relation to the S ECI 2024 02899 matters the Magistrate found Mr Kunc guilty of Charge 1 (failing or refusing to comply with a direction of an authorised officer), Charge 2 (leaving a restricted area without a valid reason) and Charge 3 (refusing or failing to comply with a face mask direction). The Magistrate convicted Mr Kunc and ordered him to pay an aggregate fine of $2,000 and costs of $136.70. In relation to the S ECI 2024 02898 matter the Magistrate found Mr Kunc guilty of Charge 1, refusing or failing to comply with a direction or requirement of an authorised officer. In relation to this charge, the Magistrate convicted Mr Kunc, fined him a sum of $1,000 and ordered him to pay statutory costs of $90.60.

3 Mr Kunc appealed against the Magistrates' Court convictions and sentences to the County Court of Victoria. On 27 March 2024, following a three day hearing de novo, in relation to the S ECI 2024 02899 matters, Judge Carlin struck out Charges 1, 2 and 3, found substituted Charge 4 (refusing or failing to comply with a direction of an authorised officer) and substituted Charge 5 (failure to comply with a direction of an authorised officer) proven, and dismissed substituted Charge 6 (failure to comply with a direction of an authorised officer). In relation to the proven offences the Court imposed an aggregate fine of $1000 without conviction. In relation to the S ECI 2024 02989 matter, Judge Carlin found the charge proven and ordered Mr Kunc to pay a fine of $1,000 without conviction.

4 On 29 May 2024 Mr Kunc commenced proceeding S ECI 2024 02899 by filing an originating motion for judicial review in this Court. Mr Kunc's application seeks judicial review of Judge Carlin's decision to find Charges 4 and 5 proven and her decision to fine him. Mr Kunc's proceeding was commenced two days after the sixty day time limit set by the Court's Rules for commencing an application for judicial review. He requires an extension of the time limit to make his application. This decision concerns Mr Kunc's application for an extension of time.

5 On 6 June 2024 Mr Kunc commenced proceeding S ECI 2024 02898 by filing an originating motion for judicial review in this Court. Mr Kunc's application seeks judicial review of Judge Carlin's decision to find Charge 1 proven and her decision to fine him. Mr Kunc commenced this proceeding ten days out of time. He requires an extension of time to make this application. This decision also concerns Mr Kunc's application for an extension of time to commence proceeding S ECI 2024 02898.

6 On 13 November 2024 Victoria Police filed applications for summary judgment and costs against Mr Kunc in both S ECI 2024 02899 and S ECI 2024 02898. This decision also concerns Victoria Police's summary judgment applications.

7 Mr Kunc relied on the following in support of his applications:

(a) the originating motions filed 29 May 2024 and 6 June 2024;

(b) the affidavits of Leszek Kunc affirmed 5 June 2024 (but filed on 29 May 2024 in S ECI 2024 02899);

(c) the summons filed 14 August 2024;

(d) the summons filed 3 October 2024 seeking, among other things, an extension of time;

(e) the affidavits of Leszek Kunc affirmed 3 October 2024; and

(f) amended written submissions filed 7 April 2025.

(a) affidavits of Joshua David Kaye, solicitor at the Office of Public Prosecutions with carriage of this matter for Victoria Police, affirmed 13 November 2024; and

(b) amended written submissions filed 24 February 2025.

9 Mr Kunc did not obtain a copy of the transcript of the County Court hearing. Victoria Police did provide Mr Kunc and the Court with a copy of a recording of the hearing which took place from 25 to 27 March 2024 before Judge Carlin. As neither Mr Kunc nor Victoria Police had cross referenced their submissions to any timestamps in the recording, the original hearing of the applications was adjourned to allow the parties to file amended submissions with timestamp references to the recording of the hearing before Judge Carlin.

The Court's duty to assist a self-represented litigant

10 I discussed the Court's duties in relation to self-represented litigants in Kunc v Victoria Police (No 1).[1] I rely on that summary of the principles and have followed them in this proceeding.

Principles relevant to an application for an extension of time

11 Rule 56.02 provides:

(1) A proceeding under this Order shall be commenced within 60 days after the date when grounds for the grant of the relief or remedy claimed first arose.

(2) Where the relief or remedy claimed is in respect of any judgment, order, conviction, determination or proceeding, the date when the grounds for the grant of the relief or remedy first arose shall be taken to be the date of the judgment, order, conviction, determination or proceeding.

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

12 In order to be special circumstances the circumstances have to have a particular quality of unusualness. Special circumstances are not general in character. Something exceeding that which is usual or common is required.[2]

13 Factors relevant to the exercise of the discretion to extend time include:

(a) the period of the delay;

(b) the reason for the delay;

(c) whether the plaintiff has an arguable case;

(d) the justice to both parties (including any prejudice to either party); and

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

14 The fact that the plaintiff may be able to demonstrate error below, or other grounds for judicial review, does not automatically result in there being special circumstances. However, if a plaintiff's grounds are not arguable or have no real prospect of success, there will ordinarily be no point in extending time and therefore no special circumstances exist.[3]

15 As noted above, Mr Kunc commenced the S ECI 2024 02899 proceeding two days after the expiration of the time limit in r 56.02(1). This period of delay is relatively small.

16 Mr Kunc commenced the S ECI 2024 02898 proceeding ten days after the expiration of the time limit in r 56.02(1). This period of delay is more significant.

17 Mr Kunc relied on his affidavits affirmed on 5 June 2024 and filed in each proceeding. The terms of those affidavits were identical. By those affidavits Mr Kunc deposed that he is not a trained lawyer and that English is his second language.

18 On 3 October 2024 Mr Kunc affirmed two affidavits in identical terms save for details of the proceeding numbers. Mr Kunc deposed to the following reasons for his delay in commencing his proceedings:

1. I am not a trained lawyer/solicitor.

1. I have been preparing documents for Judicial Review with my McKenzie friend who is not [a] qualified lawyer.
2. He did submitt [sic] the documents to Redcrest through his Redcrest acc[ount] inside 60 days but documents were not accepted because of technical errors.
3. After few unsuccessful attempts on 5th July 2024 I decided to submit documents myself.

19 The references to 'Redcrest' in Mr Kunc's affidavit are references to the Supreme Court of Victoria's online filing platform.

20 In his amended written submissions Mr Kunc said that he believed that he filed his originating motion on 27 May 2024. After two days when he had not received confirmation of his filing, Mr Kunc checked his RedCrest account and found that his originating motion was still in his folder. He then proceeded to file his originating motion.

21 I have taken this submission to be an explanation for the delay in commencing proceeding S ECI 2024 02899 because that proceeding was commenced on 29 May 2024. Mr Kunc's submissions do not offer any further explanation of his delay in commencing proceeding S ECI 2024 02898, which was commenced on 6 June 2024.

22 I accept that the task of preparing legal documents is generally more onerous for non-lawyers than lawyers. However, many self-represented litigants commence judicial review proceedings in this Court. The fact that Mr Kunc and Mr Weisinger (Mr Kunc's McKenzie friend) are not legally trained does not alone constitute a special circumstance. Nor does a litigant making a mistake in thinking that they have filed a document when they have not. There is nothing about making a mistake about whether a task has been completed that is unusual or not commonplace.

23 Mr Kunc deposed that Mr Weisinger attempted to file the documents within the 60 day time limit. While this evidence was unopposed its meaning has to be considered in context of his evidence that 'After [a] few unsuccessful attempts' on 5 July 2024 Mr Kunc decided to submit the documents himself. Proceeding S ECI 2024 02899 was filed on 29 May 2024 and proceeding S ECI 2024 02898 was filed on 6 June 2024, both well before 5 July 2024. This raises questions about whether Mr Weisinger's attempts to file the originating motions were in fact made before 27 May 2024. Unfortunately, Mr Kunc's affidavits did not exhibit any documentary evidence which may have clarified exactly when Mr Weisinger attempted to commence both proceedings.

24 Mr Kunc's explanation for the delay is difficult to understand in light of his clearly incorrect evidence of the date these proceedings were commenced. Without clarity his evidence amounts to an assertion, unsupported by any documentary evidence, that Mr Weisinger attempted to file the proceedings within time. This explanation is, at best, thin.

25 In proceeding S ECI 2024 02899 Mr Kunc's originating motion identifies the following questions of law:

(a) Does the Public Health and Wellbeing Act 2008 (Vic) (Act) provide powers to the Authorised Officers or Police Officer to compel a person to withdraw or override their consent?

(b) Does the Act provide powers to the Authorised Officer or Police Officer to compel a person to assist the Authorised Officer or Police Officer?

(c) Does s 203(1) of the Act, which states, 'A person must not refuse or fail to comply with a direction given to the person, or a requirement made of the person, in the exercise of a power under an authorisation given under s 199', override a person's free expression and the right to protest?

(d) Does s 203(1) of the Act, give the Police Officer the power to detain or arrest a person in order to coerce a person into disclosing information that may confirm whether or not an alleged offence has been committed?

26 The originating motion then identifies the following grounds:

a) I am not a trained lawyer/solicitor and I was unrepresented.

b) The judicial officer had a duty to ensure that I received a fair trial and ensure a level playing field.

c) Her Honour Judge Carlin made error in law not following procedural fairness and due process.

d) I attempted to demonstrate the evidence obtained against me (my ID and personal details) was obtained as a result of police physical attack, impropriety and or [sic] illegality.

e) English is my second language and I was struggling to articulate my arguments.

f) The judicial officer in these circumstances should have assisted me in running an application to exclude evidence that is not admissible as this would have ensured I had a fair trial.

g) However the judicial officer took advantage of my inexperience and inability to articulate my application to exclude evidence and never considered the admissibility of the evidence against me and my wife and convicted me and my wife without hearing the s 138 Evidence Act 2008 application that I was trying to run and ignored my application to exclude evidence that was obtained against me and my wife as a result of police illegality and or [sic] impropriety.

h) Her Honour Judge Carlin erred in law by accepting the Victoria Police Officers testimony which were based on lies and not supported by material evidence. Material evidence (video and photos) confirmed that police officers lied in their statements to support their narrative.

1. Her Honour Judge Carlin in her decision ignored the fact that Victoria Police Officers did not respect the legislation set out in the Charter of Human Rights and Responsibilities Act 2006 (Victoria) s12 & s16.

j) I was fearful of my safety and therefore my consent to provide my personal details is vitiated by fear, duress and being coerced.

k) There was no evidence to justify the decision. A decision requires that an administrator's decision be based upon logically probative evidence.

1. None of the Police Officers involved in incident 1 and incident 2 produced any document proving that they have authorisation under section 199 of the Act.

m) The decision was an improper exercise of the act [sic], induced by fraud, with no evidence to support this delegated legislation and otherwise contrary to Commonwealth law.

27 Mr Kunc's originating motion in proceeding S ECI 2024 02898 reproduces the questions of law and grounds from his originating motion in proceeding S ECI 2024 02899, save for an additional ground:

The charges used to convict me of the crime in [S ECI 2024 02898] were based on the charges in [S ECI 2024 02899] as well as on erroneous information allegedly received by FC Graham ALLAN.

28 Mr Kunc's amended written submissions provide a description of the events that constituted the incidents the subject of these two proceedings. Mr Kunc's submission then turn to a more detailed description of the evidence given by the police witnesses in the hearing before Judge Carlin, particularly the evidence about whether Mr Kunc was acting aggressively towards police at the time of the first incident. The thrust of Mr Kunc's submissions is that he says the oral and photographic evidence of the police witnesses involved in the incident the subject of S ECI 2024 02899 was unsupported by and conflicted with Mr Kunc's 43 second video of the commencement of that incident which was also in evidence before Judge Carlin. Mr Kunc submitted that the police witnesses lied and made false statements about the incident and that he was in fact physically attacked by the police. In relation to both incidents this part of Mr Kunc's submissions concludes by stating:

(a) Victoria police officers discriminated against Mr Kunc by attacking him because he was not wearing a face mask, without knowing the circumstances;

(b) Victoria police unlawfully obtained Mr Kunc's details through an unprovoked physical attack and trespass on Mr Kunc's liberty;

(c) Victoria police knowingly falsely stated that Mr Kunc was the aggressor, which was contrary to the evidence;

(d) All the evidence obtained by Victoria police was obtained from Mr Kunc under duress and should have been inadmissible in his prosecution.

29 Mr Kunc's submissions then turn to Judge Carlin's decision, which she delivered following a short break at the end of the third day of the hearing. The central thrust of this part of Mr Kunc's submission is that Judge Carlin erred by ignoring video evidence, photographic evidence and Mr Kunc's oral evidence and based her findings only on the police witnesses evidence.

30 I have watched the recording of the hearing before Judge Carlin. My observation is that Mr Kunc, despite having English as a second language, being unrepresented and having no training as a lawyer, ably cross-examined witnesses, gave evidence and made submissions. I also observed Judge Carlin taking pains to explain her role and the process to Mr Kunc at various stages throughout the hearing.

31 Judge Carlin gave oral reasons at the conclusion of the hearing. The Judge commenced by considering the charge of failing to comply with the direction to wear face mask in S ECI 2024 02899. After setting out the legislative requirements, the Judge turned to Mr Kunc's oral evidence and his evidence in the form of letters from his doctors. The Judge found that Mr Kunc had established that he had a mental condition which made wearing a face mask unsuitable and so fell within the statutory exemption. In relation to this charge, the Judge found that the prosecution had not discharged its burden and dismissed this charge.

32 Next the Judge turned to the other charges relating to the stay at home directions the subject of both S ECI 2024 02898 and S ECI 2024 02899. The Judge noted that Mr Kunc had argued the police behaved unlawfully in the way they approached him and insisted he provide his name and address. That unlawfulness said by Mr Kunc to arise because the police did not have reasonable grounds for believing an offence had been committed. The Judge also noted that Mr Kunc argued he provided his details to police under duress.

33 The Judge observed that the evidence of police differed from the evidence of Mr Kunc. The Judge said she found watching Mr Kunc's video extremely helpful, even though it did not cover the whole of the interaction between Mr Kunc and the police. The Judge accepted the video showed Mr Kunc tell police he had an exemption from wearing a mask and that Mr Kunc then asked the police for their names, with all but one police person providing their names and all without aggression. The Judge then said the video showed a police officer assertively but not aggressively asking Mr Kunc for his identification. The Judge said the video demonstrates that the police officer then says 'Excuse me' and Mr Kunc immediately says, 'Don't push me' but what happened to provoke these statements was not caught on the video. The Judge noted the police officer's evidence was that Mr Kunc stepped towards her, while Mr Kunc's evidence was that the police officer was aggressive towards him. The Judge said the video then shows Mr Kunc said 'I want to give you my ID. How can I give you my ID'. The Judge said that on this basis she was not satisfied that Mr Kunc was forced to give his identification to police but rather that he voluntarily provided his identification to police.

34 The Judge then found that even if Mr Kunc only provided his identification in response to a request from the police, at that time the police did have reasonable grounds to believe Mr Kunc had committed an offence. The Judge explained that she had formed this view because the evidence demonstrated the police were at that location on that day tasked with enforcing the Chief Health Officer's directions, they knew there was a protest planned for that day and they came across both Mr Kunc and his partner, both not wearing face masks. The Judge also noted that the evidence showed that when police requested Mr Kunc put on a mask, Mr Kunc's demeanour was somewhat hostile towards police, filming them and Mr Kunc saying that he had done nothing wrong and that the CHO declaration was unlawful. The Judge found these matters gave the police the necessary reasonable grounds notwithstanding that Mr Kunc told police he had an exemption. Accordingly, the Judge was satisfied that the evidence of Mr Kunc's name and address was not illegally or improperly obtained and that there were no grounds to exclude that evidence.

35 The Judge then considered Mr Kunc's evidence that he had a reasonable excuse for not remaining at home or within 10km of his home. Mr Kunc had argued that he had a compassionate reason to leave his home and to be beyond 10km, being that he was providing compassionate support to his partner. The Judge did not accept Mr Kunc's evidence that he was in the city to provide compassionate support to his partner because at that stage Mr Kunc had only known his partner for a few weeks and because Mr Kunc told police during his record of interview that he was in the city to attend the demonstration. The Judge found that Mr Kunc had sought to reconstruct a defence to the charge of failing to comply with the direction to remain at home and not to be more than 10kms from his home in relation to the incident the subject of S ECI 2024 02899. In relation to the incident the subject of S ECI 2024 02898, the Judge considered the evidence that some time had passed since the earlier incident, that Mr Kunc said he did not want to drive while his partner was stressed and upset. The Judge noted that in his record of interview Mr Kunc told police that he had been stopped by police earlier and told to go home but that he was not listening to their directions because he knew his rights and could just sit in his car. The Judge therefore did not accept Mr Kunc's evidence that he could not drive because his partner was too upset. Accordingly, the Judge found this charge proved.

36 My observation of the hearing and decision of Judge Carlin is that she carefully considered the statutory provisions and the, at times, conflicting evidence before carrying out an orthodox fact finding process to reach her judgment. The Judge clearly understood Mr Kunc was making an application to exclude evidence on the basis that it had been obtained unlawfully and that Mr Kunc provided his identification details under duress. The Judge carefully considered that application and rejected it, clearly setting out her reasons for doing so. There is simply no merit to Mr Kunc's proposed grounds that relate to the Judge's lack of assistance to him in making his application to exclude evidence.

37 During the course of the hearing of Mr Kunc's application for an extension of time, I asked Mr Kunc to identify what more he said the Judge should have done to provide him with procedural fairness. Mr Kunc's answer was that the Judge should have found in his favour. Such a requirement is clearly beyond the requirements of procedural fairness. It suggests that Mr Kunc seeks to contest the merit of the Judge's decision rather than judicial review.

38 I also do not accept that there is any basis for Mr Kunc's grounds that there was no evidence to justify the decision. As can be seen from the above summary of the Judge's decision, the Judge carefully outlined the evidence, much of it provided by Mr Kunc himself, before reaching her findings. In my view the Judge's findings were clearly available on the evidence.

39 Finally I note that Mr Kunc did not raise the Charter of Human Rights and Responsibilities Act 2006 (Vic) in the hearing before Judge Carlin. Accordingly, there is no merit in his ground that the Judge ignored Mr Kunc's argument that the police breached that legislation.

40 Accordingly, I find that Mr Kunc has not established an arguable case in either judicial review proceeding. This factor weighs heavily against the grant of extensions of time.

41 If Mr Kunc is not granted extensions of time, he will not be able to proceed with judicial review proceedings S ECI 2024 02899 and S ECI 2024 02898. I have, however, found that Mr Kunc does not have an arguable case for the relief he seeks in either proceeding.

42 There is prejudice to Victoria Police in prolonging proceedings which do not raise an arguable case for judicial review.

43 This factor weighs against the grant of the extensions of time.

The public interest in the finality of litigation

44 In Naik v Monash University,[4] Richards J considered the rationale for imposing statutory limitation periods:

...Statutory limitation periods are imposed for good reasons, including the effect of delay on the quality of justice, the oppression involved in litigation of matters long past, the need for certainty and finality and the speedy resolution of disputes.[5] A limitation period involves a judgment about the point where the interests of justice are best served by an end to disputation.

The time limit for judicial review of administrative action is 'a compromise between the desirability of correcting error or other injustice and the need for finality'.[6] The need for finality:[7]

... reflects the public interest in a manageable system by which disputes, once raised, may be put to rest, and the private interest in avoiding unfair vexation. Finality is closely related to accessibility. Without it, the system would collapse under its own weight.

It is for these reasons that the Court may only extend time to commence a judicial review proceeding in special circumstances. Whether special circumstances exist must be evaluated by reference to the rationales that underpin the time limit and the public interest in the finality of administrative decisions.[8]

45 Richard J's observations are equally applicable to Mr Kunc's proceedings.

46 This factor weighs against the grant of the extensions of time.

47 Weighing all of the matters above, I am not satisfied that there are special circumstances that would justify extending time for Mr Kunc to commence these proceedings.

48 While the delay in commencing proceeding S ECI 2024 02899 is only two days, Mr Kunc's explanation for that delay is not unusual. I am not satisfied that Mr Kunc has established that his application for judicial review in S ECI 2024 02899 raises an arguable case. Both the prejudice to the parties and the public interest in the finality of litigation also weigh against granting the extension of time.

49 Mr Kunc has offered no explanation for the ten day delay in commencing S ECI 2024 02898. He has not established an arguable case for judicial review. Both the prejudice to the parties and the public interest in the finality of litigation weigh against granting the extension of time to commence that proceeding.

50 As I have not granted Mr Kunc extensions of time to commence these proceedings, both proceedings must be dismissed. This means that there is no need to determine Victoria Police's application for summary judgment. I have, however, considered the submissions of the parties and found that Mr Kunc's proceedings do not raise an arguable case for the judicial review remedies he seeks.

51 I will make orders dismissing Mr Kunc's applications for extensions of time to commence both S ECI 2024 02899 and S ECI 2024 02898, with costs. As both proceedings will be dismissed, I will also make orders lifting the stay orders made in both proceedings on 11 September 2024.

[1] [2025] VSC 299.

[2] Mann v Medical Practitioners Board (Vic) [2002] VSC 256, [18], approved on appeal Mann v Medical Practitioners Board of Victoria [2004] VSCA 148; (2004) 21 VAR 429.

[4] [2018] VSC 605, [60]-[61].

[5] Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541 (Brisbane South), 552-553 (McHugh J).

[6] AM Gleeson, 'Finality', (Winter 2013) Bar News: Journal of the New South Wales Bar Association 35.