Plaintiff v First Defendant

1. The first defendant submits that the explanations provided do not constitute special circumstances, either alone or in combination. The first defendant submits that there is evidence that the plaintiff knew charge 1 had been recorded as 'Class 2 registrable offence' well before August 2023. The following evidence supports the first defendant's submission:

(a) 3 March 2021: A report dated 3 March 2021 from the Consulting Clinical and Forensic Psychologist prepared for sentencing records that '[h]e appeared to be quite shocked when I explained to him about the operation of the Sex Offenders Registry and the fact that he could be directed to participate in offence-specific treatment.'

(b) 13 October 2021: The transcript of the sentencing remarks in the County Court on 13 October 2021 record that the appeal judge informed the plaintiff he had been convicted of a registrable offence under the Sex Offenders Registration Act 2004 (Vic) ('SORA') which carried a mandatory registration period of eight years. The plaintiff was represented by counsel during the hearing, who undertook to explain the effect of the orders to the plaintiff.

(c) 9 June 2022: The plaintiff, represented by the same counsel who appeared in the County Court, pleaded guilty in the Magistrates' Court to nine contraventions of the SORA and was sentenced to one month's imprisonment. On 28 June 2022, the plaintiff was released from prison and placed in immigration detention.

(d) 12 July 2022: The plaintiff was charged with a contravention of the CCO. The matter was transferred to the County Court and on 2 September 2022, the County Court cancelled the CCO and made no further order because the plaintiff was in immigration detention.

(e) 10 February 2023: Miglani (Migration) [2022] AATA 4835 concerned an application for review of a decision of the delegate of the Minister for Home Affairs to cancel the plaintiff's student visa. At [27] and [92] the Tribunal stated:

The applicant conceded that he has been convicted of three criminal offences in Victoria on 24 June 2021 and that the ground for cancellation is made out. The applicant pleaded guilty to two charges of sexual assault with the assaults occurring on 11 March 2019 and 8 May 2019 and one charge of false imprisonment which also occurred on 8 May 2019. The sentence imposed on the applicant was a concurrent term of six months' imprisonment, an 18-month Community Corrections Order, with specific conditions and registration as a sex offender with specific reporting and other obligations for a period of eight years.

...

The applicant claims his breaches of his reporting obligations as a registered sex offender were a misunderstanding. The Tribunal does not accept this explanation or even if it did, that this explanation amounts to extenuating circumstances outside the applicant's control. The applicant provided Victoria Police documents to the Tribunal that confirmed when the applicant was registered as a sex offender in Victoria on 24 June 2021 his reporting obligations for the eight years of his registration were explained to him and he was given a Notice of Reporting Obligations for registered sex offenders booklet (NORO). A copy of an acknowledgement, dated 7 July 2021, signed by the applicant and a Victoria Police officer confirming the applicant received the NORO on that date was included in the Victoria Police brief, a copy of which the applicant provided to the Tribunal.[7]

(f) 27 March 2023: Miglani v Minister for Immigration, Citizenship and Cultural Affairs (No 2) [2023] FedCFamC2G 292, [5], was an application by the plaintiff for review of the decision of the Tribunal to cancel the plaintiff's student visa. The judge described the decision appealed from as follows, '[t]he Tribunal noted that following his conviction, the applicant had been registered as a sex offender for eight years.'

(g) 23 August 2023: Miglani v Minister for Immigration, Citizenship and Cultural Affairs (Migration) [2023] AATA 2719 was an application to review a decision to refuse a bridging visa. At paragraph [5], the Tribunal said:

The Magistrates' Court convicted Mr Miglani and he was sentenced to serve a six-month term of imprisonment and an 18-month Community Corrections Order (CCO). He was also required to report to police for eight years as a registered sex offender under the Sex Offenders Registration Act 2004 (Vic).

1. Based on the above, I am satisfied that the plaintiff knew the County Court had recorded charge 1 as a registrable offence at the latest by 13 October 2021. Accordingly, the plaintiff knew that he had been convicted of a registrable offence for many months prior to the detention he relies on as impeding his ability to apply for judicial review within time.
2. The first defendant also submits that even if it were accepted that the plaintiff only became aware of the content of the County Court orders in August 2023, as he submits, the remaining reasons do not provide an adequate explanation for the further 21‑month delay before filing the application for judicial review. The first defendant submits that the plaintiff's detention has not impeded him from filing numerous other proceedings.
3. In relation to being self-represented, the first defendant submits that it does not constitute 'special circumstances.'[8] The first defendant also submits that delays in obtaining documents do not constitute special circumstances, particularly where the documents sought are irrelevant to the overall question in this application, being whether the County Court impermissibly 'upgraded' the plaintiff's conviction.
4. I am not satisfied that the plaintiff has provided any persuasive reason why he delayed so significantly in filing his application for review. The plaintiff is not a naive or inexperienced litigant, and has demonstrated a capacity to prepare court documents and file them on time. I accept that the process of doing so has been more difficult from a detention centre, and with limited access to resources, but such difficulties are not necessarily a reason to grant extensions of time, particularly where the extension sought is of such an enormous length of time. Statutory timeframes are enacted for a reason, and the requirement of 'special circumstances' ensures they are not readily sidestepped.

1. The applicant makes two main submissions in support of his judicial review application based on denial of procedural fairness and jurisdictional error.
2. The plaintiff says he was denied procedural fairness because:

(a) he was denied the opportunity to be heard on material pertaining to complainant A's age;

(b) he was denied the opportunity to 'address the jurisdictional significance of the classification of charge 1 as a Class 2 offence'; and

(c) he was denied an interpreter.

1. I do not consider that it is arguable that the plaintiff was denied procedural fairness as alleged because: the plaintiff was represented in the Magistrates' Court and County Court; the police brief contained details about complainant A's age; the plaintiff pleaded guilty to the charge; and, as is discussed below, there was no upgrade to the offence. As to the denial of an interpreter, again, the plaintiff was represented and, in any case, has sufficient English to participate in, and understand, the proceeding.
2. The plaintiff says the County Court judge fell into jurisdictional error as:

(a) his Honour's description of charge 1 describes it as the more serious offence of a Class 2 registerable sex offence, where the appeal only concerned sentencing rather than the gravity of the offence;

(b) the change was inconsistent with the charge sheet and the Magistrates' Court orders;

(c) the change was based on unsubstantiated information concerning complainant A's age; and

(d) the County Court failed to make an express finding under s 11(1) of the SORA which meant the appeal judge acted beyond the Court's jurisdiction.

1. Essentially, the plaintiff submits that the County Court impermissibly changed the charge from a Class 4 offence to a Class 2 registrable offence. The plaintiff submits that a Class 4 offence is not a mandatory registrable offence but is a discretionary registrable offence that requires an order (under s 11 of the SORA) which, in this case, was not made. The first defendant submits that the plaintiff is wrong and that because charge 1 was an offence against a 16-year-old, it was a Class 2 mandatory registrable offence.
2. The relevant legislative provisions are as follows. Charge 1 was under s 40(1) of the Crimes Act, which provides:

Sexual assault

(1) A person (A) commits an offence if -

(a) A intentionally touches another person (B); and

(b) the touching is sexual; and

(c) B does not consent to the touching; and

(d) A does not reasonably believe that B consents to the touching.

1. Section 7 of the SORA defines a registrable offence as follows:

What is a registrable offence?

(1) A registrable offence is -

(a) a Class 1 offence committed as an adult; or

(b) a Class 2 offence committed as an adult; or

(c) an offence that results in the making of a sex offender registration order.

Note

Any other offence committed as an adult or an offence committed as a child may result in the making of a sex offender registration order under section 11(1), (1A), (2) or (2A).

(2) Schedule 1 lists the offences that are Class 1 offences for the purposes of this Act.

(3) Schedule 2 lists the offences that are Class 2 offences for the purposes of this Act.

1. Schedule 2, which describes 'Class 2' offences, includes:
   1. An offence against section 40(1) (sexual assault), or 41(1) (sexual assault by compelling sexual touching), of the Crimes Act 1958 where the person against whom the offence is committed is a child.
2. Schedule 4, by contrast, describes 'Class 4' offences and includes the following:
   1. An offence against section 40(1) (sexual assault), or 41(1) (sexual assault by compelling sexual touching), of the Crimes Act 1958.
3. Accordingly, where the offence in question is an offence under s 40(1), it will be a Class 2 offence if the victim is a child, and a Class 4 offence if the victim is an adult. In this case, complainant A was 16 years old and therefore a child. Accordingly, the offence on charge 1 is a Class 2 registrable offence by force of the statute.
4. Divisions 1, 2, 3 and 4 of pt 3 of the SORA set out the reporting obligations of a registrable offender. Section 33 provides that reporting obligations begin 'when the registrable offender is sentenced' or 'when the registrable offender ceases to be in government custody.'
5. Section 34 of the SORA mandates reporting obligations for registrable offenders who have been convicted of a Class 2 offence as follows:

(1) A registrable offender must continue to comply with the reporting obligations imposed by this Part for -

(a) 8 years, if he or she has only ever been found guilty of a single Class 2 offence.

1. It is otherwise if the offence is a Class 4 offence. In that case, the Court has a discretion to order that a person comply with reporting obligations.[9]
2. The brief of evidence relied on in the Magistrates' Court includes the following:
   1. Complainant One (1) at the time these offences were committed was Sixteen (16) years of age.

...

1. On the 11th March 2019 at approximately 9:30 am the sixteen (16) year old complainant ...

1. Accordingly, the age of complainant A was clearly identified in the brief, and there were supporting statements. The plaintiff was represented in the Magistrates' Court and pleaded guilty based on the information in the brief.
2. The Notice of Order made in the Magistrates' Court on 24 June 2021 includes the following in relation to Charge 1:

Convicted and sentenced to an imprisonment term of 6 MONTHS

...

The accused has been sentenced to a registrable offence pursuant to the Sex Offender Registration Act 2004.

The accused is to report to Victoria Police for a period of 8 YEARS

...

This condition starts on release from Imprisonment and goes for 18 months

The accused has been sentenced to a registrable offence pursuant to the Sex Offender Registration Act 2004

The accused is to report to Victoria Police for a period of 8 YEARS

But for the plea of guilty the sentence I would have otherwise imposed is 9 MONTHS IMPRISONMENT

1. The plaintiff appealed against the sentence on the basis that it was excessive. In his Notice of Appeal to the County Court dated 24 June 2021, the plaintiff describes the particulars of the orders/sentences appealed from as follows:

IMP (A)

• Convicted and sentenced to 6 MONTHS imprisonment

• This is part of an aggregate sentence

• Concurrent with other State sentences imposed in this case

• The accused has been sentenced to a registrable offence pursuant to the Sex Offender Registration Act 2004

...

This condition starts on release from Imprisonment and goes for 18 months.

The accused has been sentenced to a registrable offence pursuant to the Sex Offender Registration Act 2004.

The accused is to report to Victoria Police for a period of 8 YEARS.

1. Based on the above, it is abundantly clear that: the police brief disclosed the age of complainant A as 16; that the plaintiff pleaded guilty based on that brief; that the Magistrate proceeded on the basis that the plaintiff was convicted of a registrable offence; that the order in the Magistrates' Court stated that it was a registrable offence; and that the plaintiff explicitly appealed from the sentence that referred to the fact that it was a registrable offence.
2. That being the case, there is no substance to the plaintiff's submission that the County Court erroneously 'upgraded' the charge to a Class 2 registrable offence. It is apparent from the above that the offence was always a registrable offence and always a Class 2 registrable offence having regard to the fact that complainant A was 16 years old at the time. The plaintiff's case is not arguable.

1. Given that the plaintiff does not have an arguable case, there is no injustice in not granting an extension of time to seek judicial review. I note that the plaintiff submits that part of the injustice that he has suffered has been the effect of his conviction on his immigration status. But even if the plaintiff has experienced such difficulties as a consequence of his conviction, that does not strengthen the case for a jurisdictional error or denial of procedural fairness.
2. In relation to the public interest more broadly, the first defendant relies on Naik v Monash University, where Richards J held:

In law, as in journalism, deadlines matter. 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. 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'. The need for finality:

... 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.[10]

1. These observations are particularly apt in this case.

1. In all the circumstances, I am not satisfied that the plaintiff has established special circumstances justifying an extension of time. The delay is lengthy and the arguments sought to be raised lack merit.
2. The plaintiff's application will be refused. The first defendant is directed to provide to the Court and the plaintiff, within eleven days, proposed orders disposing of the proceeding, including as to costs. If the plaintiff seeks any alternative order as to costs, he may file and serve submissions within seven days of receipt of the draft orders. The first defendant may file reply and serve submissions within seven days thereafter, and the question of costs will be determined on the papers.

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

[2] Aon Risk Services Australia Pty Ltd v Australian National University (2009) 239 CLR 175 ('Aon Risk Services').

[4] Mann v Medical Practitioners Board of Victoria [2002] VSC 256, [18]; Garrett v Legal Services Commissioner [2015] VSC 465, [23] ('Garrett').

[6] The plaintiff's submissions filed on 16 January 2026.

[7] Miglani (Migration) [2022] AATA 4835, [27], [92] (emphasis added).

[8] Kunc v Victoria Police (No 2) [2025] VSC 298, [22].

[9] See Sex Offenders Registration Act 2004 (Vic) s 11.

[10] Naik v Monash University [2018] VSC 605, [60]-[62] (citations omitted).