Plaintiff v First Defendant

1 On 1 May 2019 the plaintiff, Mr Kyriazis, filed a criminal charge in the Magistrates' Court of Victoria alleging that the first defendant, Detective Senior Sergeant Peter Leo Kos, had committed an offence contrary to s 456AA(5)(a) of the Crimes Act 1958 (Vic) (Crimes Act). The details of the offence in the charge sheet state that the first defendant 'did refuse to state his name and details'. Mr Kyriazis was the informant named in the charge sheet. Where the informant of a criminal charge is a private person the prosecution is often referred to as a 'private prosecution'.

2 The Office of Public Prosecutions (the OPP) was made aware of the filing of the charge and twice wrote to Mr Kyriazis asking him to provide to the OPP any material that supported the allegation made against the first defendant. The letter also informed Mr Kyriazis that the Director of Public Prosecutions (the DPP) has the power to take over the prosecution and either conduct the prosecution herself or terminate the prosecution.

3 In response to the letters, Mr Kyriazis provided the OPP with some documents. From those documents, it became clear that it was alleged by Mr Kyriazis that the offence was committed at the Melbourne Magistrates' Court on 10 July 2018.

4 On 24 May 2019 the OPP wrote to Mr Kyriazis advising him that the DPP, pursuant to s 22(1)(b)(ii) of the Public Prosecutions Act 1994 (Vic) (Public Prosecutions Act) and the criteria set out in the Director's policy, had decided to take over the prosecution of the charge filed by Mr Kyriazis against the first defendant and withdraw the charge. The Policy of the Director of Public Prosecutions for Victoria provides that the DPP will take over and discontinue a private prosecution if there is no reasonable prospect of conviction or the prosecution is not in the public interest. Although no specific reason why the DPP decided to withdraw the charge was given in the letter, it is now clear that the reason was that the DPP was of the opinion that there was no reasonable prospect of conviction.[1]

5 On 29 May 2019 at the Melbourne Magistrates' Court, the DPP, by Counsel appearing on her behalf, took over the proceeding in respect of the charge laid against the first defendant and withdrew the charge. Mr Kyriazis was present at the Magistrates' Court when the charge was withdrawn and was accompanied by a number of other men. Outside of the courtroom, Mr Kyriazis, accompanied by the other men, spoke to Counsel appearing on behalf of the DPP. That conversation, which I will detail later on in this judgment, appears to have been the catalyst for Mr Kyriazis' application for review.

6 There a number of elements to an offence contrary to s 456AA(5)(a) of the Crimes Act. The DPP's view appears to be that one of those elements is that the offence must be committed while a police officer or a protective services officer (PSO) (as the case may be) is on duty at a designated place. 'Designated place', for the purposes of s 456AA, has the same meaning as in the Victoria Police Act 2013 (Vic) (Police Act). I will return to 'designated place' later on in this judgment.

7 On 25 July 2019 Mr Kyriazis filed in this Court an originating motion for judicial review. On 11 September 2019 an amended originating motion was filed in which the plaintiff claimed that the reasons provided by the DPP for the decision to withdraw the charge were 'based on a vitiating misconception'. Mr Kyriazis seeks a number of remedies, including an order in the nature of certiorari quashing the DPP's decision to withdraw the charge and an order in the nature of mandamus directing the DPP to prosecute the charge.

8 By letter dated 1 August 2019, the second defendant advised the Court that it does not intend to take an active role in the proceeding and will abide by the Court's decision.

9 By summons filed on 19 August 2019, the third defendant applied for summary judgment (and costs) pursuant to s 62 of the Civil Procedure Act 2010 (Vic) (the CPA) on the ground that Mr Kyriazis' claim has no real prospect of success. Section 63 of the CPA provides that a court may give summary judgment if satisfied that a plaintiff's claim has no real prospect of success. The summary judgment application has been referred to me for hearing and determination. For the reasons that follow, summary judgment should be given for the defendants against the plaintiff on the whole of the plaintiff's claim for judicial review.

10 At the commencement of the hearing on 23 January 2020 Mr Kyriazis sought my permission, pursuant to s 4A(4)(a) of the Court Security Act 1980 (Vic), to record the proceeding. This was not opposed by the third defendant. Prior to the commencement of the hearing, Mr Kyriazis provided to the Court the decision of Bell J in Kyriazis v County Court of Victoria (No 1)[2]. In that proceeding, Bell J permitted Mr Kyriazis to record the proceeding. I saw no reason not to follow the decision of Bell J and permitted Mr Kyriazis to record the proceeding heard before me on 23 January 2020. This paragraph should be considered the written permission required by s 4A(4)(a) of the Court Security Act 1980 (Vic).

11 Mr Kyriazis also sought leave to be assisted by a McKenzie friend, Mr Nigel Waddington. I granted that leave.

12 In support of her application for summary judgment, the third defendant filed an affidavit sworn by the then Solicitor for Public Prosecutions, Mr John Cain (now Judge Cain of the County Court of Victoria and Coroner). Much of that evidence is set out in paragraphs 1 - 5 above.

13 The plaintiff filed four affidavits by persons who were with Mr Kyriazis at the Melbourne Magistrates' Court when the charge was withdrawn. These are the men who were with Mr Kyriazis when he spoke to Counsel who had appeared on behalf of the DPP. Even though their evidence differs to some degree, they are consistent in deposing that during the conversation with Mr Kyriazis, something was said by Counsel appearing on behalf of the DPP about 'designated area'. Mr Waddington deposes that Counsel for the DPP said that the charge was withdrawn because the first defendant was not on duty at a designated place (or similar words).

14 I have also had regard to Mr Kyriazis' affidavit filed in support of his originating motion. He also deposes that Counsel appearing on behalf of the DPP said that the charge had no chance of success and was withdrawn because a court was not a designated place under the Victoria Police Regulations. Mr Kyriazis further deposes that after perusing the Police Act and the Victoria Police Regulations 2014 (Vic) the only references to 'designated place' are in relation to PSOs and that the DPP has decided to withdraw the charge based on the erroneous belief that the first defendant was a PSO.

15 There is no evidence to suggest that the reason given to Mr Kyriazis by Counsel appearing on behalf of the DPP was the only reason the charge was withdrawn. Indeed, the oral submissions made on behalf of the DPP at the hearing on 23 January 2020 confirmed that there were other elements of the charge that the DPP considered could not be proved.

16 The principles applicable to the grant of summary judgment are well established. In the recent decision of Sloss J in Silver Chef Rentals Pty Ltd v Makong Australia Pty Ltd,[3] her Honour summarised those principles in an application for summary judgment made under s 61 of the CPA (which provides that a plaintiff may apply for summary judgment). The principles are equally applicable to an application made under s 62 of the CPA. Those principles were summarised by her Honour as follows:

1. In Victoria, the requirements which must be satisfied in order for a plaintiff to obtain summary judgment have recently been considered and aptly summarised by Matthews JR in Padella Pty Ltd v Elliott.[4] For convenience, I have largely adopted those principles as distilled by Matthews JR, which are set out below.
2. Section 61 of the CPA permits a plaintiff to make an application for summary judgment on the ground that the defendant's defence or part of that defence has no real prospect of success. Section 63 of the CPA provides that, subject to s 64, the Court may give summary judgment in a civil proceeding 'if satisfied' that a defence has 'no real prospect of success'.
3. Section 64 of the CPA provides that:

'Despite anything to the contrary in this Part or any rules of court, 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 civil proceeding 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.'

1. In Lysaght Building Solutions Pty Ltd v Blanalko Pty Ltd,[5] the Court of Appeal stated the relevant test to be applied in determining an application for summary judgment made under ss 61 and 63, as follows:[6]

'(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];

(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 of 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.'

1. Section 7(1) of the CPA sets out its overarching purpose, which is to facilitate the just, efficient, timely and cost-effective resolution of the real issues in dispute. Section 9 of the CPA requires the Court to have regard to these purposes in making any order or giving any direction in a civil proceeding.

17 The DPP's main, and primary submission, is that the DPP's decision to take over and withdraw the charge is not judicially reviewable and, therefore, the plaintiff's claim has no real prosects of success. A number of decisions were relied upon to support that submission.

18 In Maxwell v The Queen[7], the High Court considered the decision of a trial judge to reject an accused's plea of not guilty to murder but guilty to manslaughter on the basis of diminished responsibility. The prosecutor had elected, under s 394A of the Crimes Act 1900 (NSW), to accept the accused's plea. The High Court decided that, save to prevent an abuse of process, a trial judge has no power to review the making of an election by a prosecutor to accept a plea of guilty to a lesser offence, nor to intervene and reject the plea. In their joint judgment, Gaudron and Gummow JJ said:

It ought now be accepted, in our view, that certain decisions involved in the prosecution process are, of their nature, insusceptible of judicial review. They include decisions whether or not to prosecute, to enter a nolle prosequi, to proceed ex officio, whether or not to present evidence and, which is usually an aspect of one or other decisions, decisions as to the particular charge to be laid. 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.[8]

19 In Stefanovski v The Magistrates' Court of Victoria,[9] the plaintiff appealed from a Master's decision to refuse judicial review of a decision of the DPP made under s 22(1)(b)(ii) of the Public Prosecutions Act to take over the conduct of a private prosecution initiated by the plaintiff and discontinue the proceedings. The appeal was heard by Habersberger J during which the plaintiff argued that s 22(1)(b)(ii) was invalid and that the DPP had acted as a judicial authority. He relied on s 51(xxiv) of the Australian Constitution in support of that argument. In dismissing the appeal, Habersberger J said:

Nothing that has been put before me by Mr Stefanovski, nor any argument that I can think of on his behalf, would indicate to me that there is any ground for saying that s 22(1)(b)(ii) of the Public Prosecutions Act 1994 infringes any section of the Constitution. Moreover, in my opinion, it is not open to the plaintiff to seek judicial review of the decision by the Director to take over the conduct of the two informations or of the decision by the Director to discontinue those proceedings.[10]

20 In Walsh v Director of Public Prosecutions[11], Hansen J considered an application for judicial review of orders made by the Magistrates' Court whereby a private prosecution was struck out on the application of the DPP. In dismissing the application, Hansen J said:

I agree with the observation of Habersberger J in Stefanovski that a decision of the Director to take over the conduct of a proceeding and a decision to discontinue the proceeding is not open to judicial review. The reason is that such decisions as the Director made here, to take over and conduct a proceeding and not to proceed with it - are decisions made in the prosecutorial process and are not susceptible of judicial review. The reason for this was more fully stated by Gaudron and Gummow JJ in their joint judgment in Maxwell v The Queen ...[12]

21 The DPP also referred to the decision of the High Court in Likiardopoulos v The Queen.[13] In that decision, the Court considered if it was an abuse of process of the Court for the Crown to prosecute the appellant as an accessory to murder while accepting the pleas of guilty to lesser offences from others who the Crown alleged had been the principal offenders. The Court decided that such a decision by the Crown was not an abuse of the process of the Court. In the joint judgment of Gummow, Hayne, Crennan, Kiefel and Bell JJ, the Court referred to the judgment of Gaudron and Gummow JJ in Maxwell and restated what their Honours had said in Maxwell, that is, that "the independence and impartiality of the judicial process would be compromised if courts were perceived to be in any way concerned with who is to be prosecuted and for what".[14]

22 The DPP referred specifically to the single judgment of French CJ in Likiardopoulos where his Honour said:

I would not wish my agreement with the reasons given in the joint judgment to be taken as acceptance of a proposition that the exercise of a statutory power or discretion by a prosecutor is immune from judicial review for jurisdictional error, however limited the scope of such review may be in practice.[15]

23 The DPP submitted that the comments of French CJ are obiter dicta and that the authorities relied upon by the DPP represent the settled law.

24 Mr Kyriazis submitted that the DPP, acting in an administrative capacity, made a clear error of law in making her decision to discontinue the charges. He submitted that the DPP's decision can be the subject of judicial review; that the decision was an exercise of power given to the DPP by statute and is therefore open to judicial review; and that s 49 of the Public Prosecutions Act provides that the Supreme Court is prevented from entertaining a confined type of application which does not include judicial review of decisions made under s 22(1)(b)(ii) and therefore such a review is permissible.

25 Mr Kyriazis submitted that the cases of Maxwell and Walsh can be distinguished from this matter as they did not deal with the judicial review of a decision by the DPP that "was made as result of a clear misapplication of the law".[16]

26 Moreover, Mr Kyriazis submitted that the observation of Habersberger J in Stefanovski that it is not open to seek judicial review of the DPP's decision was a "passing opinion" and that the similar view of Hansen J in Walsh was a "suggestion of the law" rather than a "firm statement of the law".

27 Mr Kyriazis also referred to the decision of Barton v R (1980).[17] Barton was footnoted as a reference to the judgement of Gaudron and Gummow JJ in Maxwell and set out in paragraph 18 above. Barton was a challenge by persons against whom two indictments were presented in the name of the Attorney-General of New South Wales. Mr Kyriazis submitted that Barton was a decision involving a challenge to the prerogative power of the Attorney-General, and not the statutory power of the DPP - therefore, when, in Maxwell Gaudron and Gummow JJ said certain decisions involved in the prosecution process are insusceptible of judicial review (including the decision whether or not to prosecute), that observation was in relation to the prerogative power of the Attorney-General (and not the statutory power of the DPP).

28 Mr Kyriazis submitted that this distinction can be seen when Gaudron and Gummow JJ said:

The power of the Attorney-General and of the Director of Public Prosecutions to enter a nolle prosequi and that of a prosecutor to decline to offer evidence are aspects of what is commonly referred to as 'the prosecutorial discretion'. In earlier times, the discretion was seen as part of the prerogative of the Crown, and thus, as unreviewable by the courts. That approach may not pay sufficient regard to the statutory office of Director of Public Prosecutions which now exists in all States and Territories and in the Commonwealth. Similarly, it may pay insufficient regard to the fact that some discretions are conferred by statute, such as that conferred on a prosecutor by s 394A of the [Crimes Act 1900 (NSW)].[18]

29 Accordingly, I understand Mr Kyriazis' submission to be that because the DPP's decision to take over and discontinue the charge, firstly, involved the exercise of a statutory power or discretion and, secondly, was affected by jurisdictional error, it is amenable to judicial review.

30 Other decisions were referred to in support of Mr Kyriazis' submissions but I need not refer to them in these reasons. They have been considered in conjunction with the decisions specifically referred to in the preceding paragraphs.

31 Mr Kyriazis submitted that he has a real question to be tried and therefore summary dismissal is not available to the DPP. For that submission, Mr Kyriazis relied on the decision in Lysaght set out at paragraph 16 above.

32 Finally, Mr Kyriazis submitted that summary disposal applications must not be used to stultify the development of the law, as set out by French CJ and Gummow J in Spencer v Commonwealth of Australia[19]. Although Mr Kyriazis relied, in written submissions, on only part of that paragraph in Spencer, it is important to set out the paragraph in full. That decision dealt with the summary judgement provisions of the Federal Court of Australia Act 1976 (Cth) of which their Honours said:

Section 31A(2) requires a practical judgment by the Federal Court as to whether the applicant has more than a 'fanciful' prospect of success. That may be a judgment of law or of fact, or of mixed law and fact. Where there are factual issues capable of being disputed and in dispute, summary dismissal should not be awarded to the respondent simply because the Court has formed the view that the applicant is unlikely to succeed on the factual issue. Where the success of a proceeding depends upon propositions of law apparently precluded by existing authority, that may not always be the end of the matter. Existing authority may be overruled, qualified or further explained. Summary processes must not be used to stultify the development of the law. But where the success of proceedings is critically dependent upon a proposition of law which would contradict a binding decision of this Court, the court hearing the application under s 31A could justifiably conclude that the proceedings had no reasonable prospect of success.

33 The proposition that the exercise of prosecutorial discretion, including decisions whether or not to prosecute, cannot be the subject of judicial review is now well established. And the reason behind that proposition, that is, that the independence and impartiality of the judicial process would be compromised if it was otherwise, is also well established.

34 However, none of the decisions that I have been referred to include an attack on the exercise of prosecutorial discretion because the relevant law has been misapplied or misinterpreted or because there has been a mistake of fact. Maxwell dealt with the review of the making of an election by a prosecutor to accept a plea of guilty to a lesser offence; in Stefanovski a review of the DPP's decision was sought because it was alleged that s 22(1)(b)(ii) infringed the Constitution; in Walsh the complaint was that the DPP's decision was biased; in Likiardopoulos the attack on the Crown was that it decided to prosecute the appellant as an accessory to murder while accepting pleas of guilty to lesser offences from others who the Crown alleged had been the principal offenders.

35 I think it is important at this stage to set out s 456AA of the Crimes Act which provides as follows:

1. A police officer or a protective services officer on duty at a designated place may request a person to state his or her name and address if the police officer or the protective services officer believes on reasonable grounds that the person -

(a) has committed or is about to commit an offence, whether indictable or summary; or

(b) may be able to assist in the investigation of an indictable offence which has been committed or is suspected of having been committed.

(2) A police officer or a protective services officer who makes a request under subsection (1) must inform the person of the grounds for his or her belief in sufficient detail to allow the person to understand the nature of the offence or suspected offence.

(3) A person who, in response to a request made by a police officer or a protective services officer in accordance with this section -

(a) refuses or fails to comply with the request; or

(b) states a name that is false in a material particular; or

(c) states an address other than the full and correct address of his or her ordinary place of residence or business -

is guilty of a summary offence punishable on conviction by a level 11 fine (5 penalty units maximum).

(4) A person who is requested by a police officer or a protective services officer under subsection (1) to state his or her name and address may request the officer to state, orally or in writing, his or her name, rank and place of duty.

(5) A police officer or a protective services officer who, in response to a request under subsection (4) -

(a) refuses or fails to comply with the request; or

(b) states a name or rank that is false in a material particular; or

(c) states as his or her place of duty an address other than the name of the police station which is the police officer's or the protective services officer's ordinary place of duty; or

(d) refuses to comply with the request in writing if requested to do so -

is guilty of a summary offence punishable on conviction by a level 11 fine (5 penalty units maximum).

(6) A protective services officer may only exercise the power under this section in relation to a person who is at, or in the vicinity of, a designated place.

(7) In this section -

'designated place' has the same meaning as in the Victoria Police Act 2013.

36 Under s 3 of the Police Act, 'designated place' means a place prescribed by the [Victoria Police Regulations 2014 (Vic)] to be a designated place for the purposes of s 52. Under those Regulations, 'designated place' includes railway premises, Council controlled car parks and bus premises.

37 It appears to be accepted that the first defendant was on duty at the Melbourne Magistrates' Court. The definition of 'designated place' does not include a court. Therefore, the first defendant was a police officer on duty but not at a designated place.

38 Here, Mr Kyriazis claims that the DPP believed, erroneously, that the first defendant was a PSO when in fact he was a police officer. Given the documents supplied to the DPP by Mr Kyriazis in support of the charge, I doubt that mistake was made. What Mr Kyriazis really claims is that the DPP has incorrectly interpreted s 456AA and has decided that for a s 456AA(5)(a) offence to be committed, it must be committed whilst either a police officer or a PSO is on duty at a designated place. Put another way, Mr Kyriazis' claim is that because the first defendant is a police officer, the alleged offence did not have to be committed whilst he was on duty at a designated place - that is, he could be on duty anywhere. His interpretation of s 456AA is that the 'designated place' requirement in s 456AA(1) applies only to PSOs and not police officers.

39 Therefore, Mr Kyriazis would argue, the DPP has misinterpreted s 456AA and that misinterpretation has infected the DPP's discretion in deciding to discontinue the prosecution.

40 Such an argument may very well be the type of jurisdictional error envisioned by French J in Likiardopoulos and an argument that may well result in qualification or further explanation of the law on this type of judicial review, as suggested in Spencer. Mr Kyriazis may even be right and that the proper interpretation of s 456AA is that a police officer who commits a s 456AA(5) offence does not have to be on duty at a designated place. That is a question of statutory interpretation that was not argued in this matter. Without considering that question further, I must say that it would appear strange that the legislature would confine the exercise of the power under s 456AA to police who are on duty at a designated place, although it appears that the person who is subject to the police officer's request does not have to be at, or in the vicinity of, a designated place.[20] On the other hand, it would be difficult to construe the 'designated place' requirement to on duty PSOs but not to on duty police officers.

41 If that was the end of the matter, I would be of the view that it would be difficult to conclude that Mr Kyriazis' claim has no real prospect of success. Mr Kyriazis' review of the DPP's decision is on a different basis than in the cases relied on by the DPP in support of their submission that decisions made in the prosecutorial process are not susceptible of judicial review. French CJ in Likiardopoulos provides some support for the argument that some of those decisions may be susceptible. For those reasons, and mindful of what the Federal Court said in Spencer, I could not say that the application for review has only a fanciful chance of success or that there is no real question to be tried. However, that is not the end of the matter.

42 I do not think that it is necessary that I come to a concluded view on the DPP's main submission that the DPP's decision to take over and withdraw the charge is not judicially reviewable and, therefore, the plaintiff's claim has no real prosects of success. Proceeding on the basis that the DPP's decision is, on this occasion, amenable to judicial review, I am still required to determine if the review has any real prospect of success. For the reasons that follow, I am of the view that it does not.

43 It must be remembered that the documents provided by Mr Kyriazis to the DPP was the totality of the evidence in support of the charge laid by him against the first respondent. There is no doubt that it is this evidence that the DPP had regard to in making her decision under s 22(1)(b)(ii).

44 Apart from proving that a police officer or a PSO, was, firstly, on duty, and secondly, on duty at a designated place (leaving to one side if being on duty at a designated place applies to both police officers and PSOs), an offence contrary to s 456AA(5) requires proof of the following elements:

(a) a police officer or PSO requests a person to state his or her name and address under ss 456AA(1); and

(b) the person then requests the officer to state, orally in writing, his or her name, rank and place of duty; and

(c) the officer refuses or fails to comply with the request or states a name or rank that is false in a material particular or states as his or her place of duty an address other than the name of the police station which is the police officer's or PSO's ordinary place of duty or refuses to comply with the request in writing if requested to do so.

45 In other words, a person cannot simply ask a police officer or a PSO to state his or her name or rank. The necessary prerequisite, as set out in paragraph 44(a) above, must have taken place before the request of the officer is made.

46 It is clear from the evidence that Mr Kyriazis supplied to the DPP in support of the charge laid against the first defendant, which included an affidavit sworn by Mr Kyriazis and part of a statement made by the first defendant, that the element set out in paragraph 44(a) cannot be made out. There is simply no evidence that the event set out in that paragraph occurred.

47 So, even if Mr Kyriazis was to successfully argue that the DPP mistakenly thought that the first defendant was a PSO and/or that because the first defendant is a police officer the offence can be committed by him when he is on duty anywhere, the charge still cannot be proved.

48 The prosecution must prove all of the elements of the offence beyond reasonable doubt.[21] For the offence alleged against the first defendant, the prosecution could not, on the available evidence, do this.

49 The DPP could not have arrived at any conclusion other than the one that she did - that there was no reasonable prospect of conviction and the private prosecution initiated by Mr Kyriazis should be discontinued.

50 Accordingly, Mr Kyriazis' application for judicial review of the DPP's decision has no real prospect of success and summary judgement is given for the third defendant.

51 In addition to orders in relation to the DPP, Mr Kyriazis seeks orders in the nature of certiorari quashing the order made by the second defendant (the order was that the charge be struck out/withdrawn) and an order in the nature of mandamus directing the second defendant to proceed with the hearing of the charge. No orders are sought in relation to the first defendant. Given my view that the application for judicial review of the DPP's decision has no real prospect of success, summary judgment is also given for the first and second defendants.

(i) Pursuant to s 62 of the Civil Procedure Act 2010 (Vic), the defendants have judgement against the plaintiff on the Amended Originating Motion for Judicial Review filed on 11 September 2019 (the proceeding); and

(ii) The proceeding is dismissed.

53 I will hear the parties on the question of costs.

[1] Paragraph 9 of the outline of submissions filed by the third defendant dated 24 September 2019.

[2] [2017] VSC 636.

[3] [2019] VSC 703, [49]-[60].

[4] [2018] VSC 301, [19]-[28]. See also Israfoods (2006) Ltd v J & D Consortium Pty Ltd [2019] VSC 323, [40]-[51].

[5] [2013] VSCA 158; (2013) 42 VR 27 (Lysaght).

[6] Ibid, at 40 [35] (per Warren CJ and Nettle JA, Neave JA agreeing in part (at 42 [40]-[42])).

[9] [2004] VSC 313 (Stefanovski)

[11] [2005] VSC 469 (Walsh)

[13] (2012) 247 CLR 265 (Likiardopoulos)

[16] Paragraph 11 of Mr Kyriazis' outline of submissions dated 28 October 2019.

[17] [1980] HCA 48; 147 CLR 75 (Barton).

[19] [2010] HCA 28, [25] (Spencer).

[20] See s 456AA(6) of the Crimes Act.

[21] Thomas v R [1960] HCA 2; (1960) 102 CLR 584; La Fontaine v R (1976) 135 CLR 62; Van Leeuwen v R (1981) 55 ALJR 726; Chamberlain v R (No 2) [1984] HCA 7; (1984) 153 CLR 521; Hoch v R [1988] HCA 50; (1988) 165 CLR 292; R v Falconer [1990] HCA 49; (1990) 171 CLR 30.