Proposed Plaintiff v Proposed Defendant

2 The proposed originating motion contained substantially the same content as an originating motion dated 14 September 2023 that Mr Donohue had sought to file, but which had also been rejected by the Prothonotary.

3 The Prothonotary rejected the proposed originating motion pursuant to r 28A.04(2) of the Supreme Court (General Civil Procedure Rules) 2015 ('Rules') on the basis that if sealed, it would constitute an abuse of process.

4 By letter dated 20 September 2023, Mr Donohue requested a review of the Prothonotary's rejection of the proposed originating motion.

5 I address that application for review of the Prothonotary's decision as an application under r 28A.04(5) to direct the Prothonotary to seal the document.

6 Mr Donohue's proposed originating motion arises against the background of a number of proceedings in this Court which relate to his conviction and sentencing in the County Court in September 2018 for charges of making false document, perjury and attempting to pervert the course of justice.[1]

7 Mr Donohue applied to the Court of Appeal of the Supreme Court for leave to appeal against his sentence. This application was refused.[2] He subsequently applied to the Court of Appeal for leave to appeal against his conviction. This application was also refused.[3] Applications for special leave to appeal to the High Court from each of these decisions of the Court of Appeal were made by Mr Donohue and were also refused.[4]

8 Mr Donohue then again applied to the Court of Appeal for leave to appeal his conviction, contending that he had 'fresh and compelling evidence' on which he could rely.[5] This application was refused by the Court of Appeal on the basis that Mr Donohue was seeking 'once more to litigate issues that had been determined against him both in this Court and in the High Court'; that the contention that there was fresh and compelling evidence was 'utterly devoid of substance'; and that the application was an abuse of process.[6] An application for special leave to appeal to the High Court against this decision was refused.[7]

9 Mr Donohue then sought to file an originating motion, seeking judicial review of decisions relating to his conviction and sentencing in the County Court. The Prothonotary declined to accept the document for filing on the basis that it sought to reagitate the appeal of the County Court orders, which had been the subject of full and final adjudication by the Court of Appeal. Mr Donohue sought directions from the Court that the originating process be sealed or accepted for filing pursuant to r 27.06(3). The Court declined to direct the Prothonotary to seal the proposed originating motion.[8]

10 On 27 February 2023, Mr Donohue wrote to the Chief Justice with a complaint regarding what he described as the improper conduct of the Prothonotary in declining his application for a fee waiver when submitting documents through RedCrest in February 2023.

11 On 15 March 2023, Mr Donohue made another written complaint, again addressed to the Chief Justice alleging 'improper, and illegal, practices by judges within your court' and asserting that judges had not read or ignored evidence when determining his appeals.

12 On 6 June 2023, Mr Donohue made a further complaint to the Chief Justice. This complaint referred to the 15 March 2023 complaint and made further observations relating to cases in other jurisdictions.

13 The proposed originating motion made four claims, in relevant part as follows:[9]

(a) That the Chief Justice had 'made a decision NOT to fulfil what would reasonably be expected to be part of her responsibilities under the Supreme Court Act 1986' ('Supreme Court Act').

(b) 'Despite continuous requests on behalf of a wrongly convicted Victorian citizen, who falls reasonably under the Duty of Care of the defendant, the defendant decided NOT to act on the plaintiff's formal complaints regarding the function of the Supreme Court, and the improper actions of several of the defendant's Judicial officers and staff.'

(c) 'The defendant has done, and continues to do, damage to the plaintiff, and the plaintiff's wife and son, by her decision NOT to fulfil her responsibilities. Her decision has denied the plaintiff the opportunity to have his demonstrably wrongful conviction acknowledged by the courts, and overturned appropriately.'

(d) 'A further letter of complaint regarding another Judicial officer of the defendant's court was sent to the defendant on 15 Sep 2023.' The proposed originating motion did not identify that judicial officer.

14 The proposed originating motion includes five paragraphs identified as grounds of review. These 'grounds of review' set out in further detail the particulars of Mr Donohue's complaints.

15 This ground refers to the dates on which Mr Donohue wrote to the Chief Justice, being 25 February 2023, 15 March 2023 and 6 June 2023, and to the substance of that correspondence.

16 Mr Donohue contends that the reasons given for the rejection of the originating motion were based on false information; that judges of the Court had simply not read his 'Applications for Appeal' in any level of detail, or had deliberately ignored the important details, and/or deliberately decided not to criticise the actions of a Judicial officer from the County Court. He also refers to matters that he describes as 'miscarriages of justice that occurred in the plaintiff's County Court trial', which he contends 'led to the plaintiff's wrongful conviction', and which were then 'ignored by the Appeals Courts who simply did not allow the Appeals to proceed'. As a result, Mr Donohue argued that it 'turns to the Chief law officer of the Supreme Court of Victoria to redress the wrongs of her Judicial officers and ensure that justice is done.'

17 In proposed ground 3 Mr Donohue states that the Chief Justice was made aware of the contended 'incorrect and/or false information contained in the initial trial, and subsequent appeal denials'; and also of his circumstances and those of 'his invalid wife and his disabled son, which continue to deteriorate due to the failures of her Judicial officers'.

18 Mr Donohue claims that the Chief Justice is the 'responsible decision maker who has failed to perform her duties that would reasonabl[y] be expected under the Supreme Court Act'.[10] He contends that the delay is causing severe damage to his mental, and, as a consequence, physical health, and that of his family.

19 Mr Donohue states that the Chief Justice 'is reasonably expected under the [Supreme Court] Act to rectify any failures of the justice system caused by ... improper and/or illegal conduct'.

That the defendant makes the decision to fulfil what is reasonably expected to be her duty under the [Supreme Court] Act, and, in the interests of justice, expeditiously reply to the plaintiff's complaints explaining why the clear, fresh, and compelling evidence of plaintiff's demonstrably wrongful conviction was completely ignored, again, and again, by the Court of Appeal, Supreme Court of Victoria; and that the course of justice that falls within the guardianship of the defendant be exercised to recommend that the plaintiff be given the right that he has been continuously denied, i.e. the right to appeal the wrongful conviction under the subsequent appeals provisions of the Justice Legislation Amendment (Criminal Appeals) Act 2019 ... and section 326C of the Criminal Procedure Act 200[0].

Prothonotary's reasons for rejecting the proposed originating motion

21 The Prothonotary rejected Mr Donohue's proposed originating motion, and provided written reasons.[11]

22 The Prothonotary noted that the proposed originating motion was not substantively different from another filed by Mr Donohue in a separate proceeding (S ECI 2023 04300) on 14 September 2023.

23 The Prothonotary noted in the reasons for rejection:

The correct and appropriate means of challenging a decision of a court is by appeal or review and not by complaint

Neither the Chief Justice, nor any other Judge, has any power to interfere with a judicial decision except as allowed by prescribed appeal provisions. Mr Donohue has not provided any legal basis for why he thinks that the office bearer of the role of Chief Justice would have a power to direct another Judge to overturn or reconsider a decision made in open court.

....

If sealed, the originating motion and accompanying material dated 18 September 2023 would be a particularly egregious abuse of process. Accordingly, the proposed proceeding is refused pursuant to r 28A.04(2).

Request for review of the Prothonotary's rejection

24 Mr Donohue sent an email to the Court on 20 September 2023, attaching a formal request for a judge of the Supreme Court to review the Prothonotary's decision to reject the originating motion. He responded separately to each of the ten paragraphs that comprised the Prothonotary's reasons.

25 The substance of Mr Donohue's request for review is essentially as follows:

The Chief Justice is unquestionably the correct person to receive, and respond to, complaints regarding any improper and/or illegal conduct within the Supreme Court of Victoria.

Improper and/or illegal conduct within the appeals process is the basis of the complaints to the Chief Justice and therefore this point made by the Prothonotary is totally irrelevant.

26 The Prothonotary's power to reject an originating process, under r 28A.04(2) of the Rules, arises where the Prothonotary considers that:

(a) a document, if it were sealed, would be substantially irregular or constitute an abuse of process; or

(b) there has been a failure to comply with the Rules, an order of the Court or a direction of the Prothonotary or the Registrar after a reasonable opportunity to do so.

27 Rule 28A.04(5) provides that where the Prothonotary or the Registrar refuses to seal or rejects a document, the Court may direct that the Prothonotary or Registrar seal the document, or may make other orders or directions that it considers appropriate.

28 Determinations under r 28A.04(5) '[do] not involve any form of adjudication on the merits of the claim or the determination of an interlocutory or preliminary dispute.'[12] The power of the Court to direct the Prothonotary to seal an originating process is to be approached on the basis that, after due consideration of the process to be issued, if there is no demonstrable prospect of success, or it would otherwise constitute an abuse of process, it is appropriate to decline to direct the Prothonotary to seal the document. In LG v The Public Advocate, J Forrest J observed:

As I see it, if there is an arguable (even paper-thin) basis for permitting the filing of the documents then it should be allowed. This Court can then determine, at an early stage if the proposed respondent so desires, whether the proceeding should be permitted to continue.[13]

29 The substance of Mr Donohue's proposed originating motion is an application for review of an alleged failure of the Chief Justice to respond to his complaints about the conduct and outcome of the various appeal and review processes he has instituted with respect to his trial, conviction and sentencing in the County Court. He seeks, by the proposed originating motion, judicial review of the purported decision not to act on the complaints, and to compel the Chief Justice to give him further rights to appeal.

30 As set out in paragraphs [7]-[8] above, Mr Donohue has made multiple applications to the Court of Appeal for leave to appeal against his sentence, and against his conviction. Full reasons for the Court of Appeal's decision to refuse leave were given by the Court of Appeal in response to each of those applications.[14]

31 Mr Donohue has also sought, as noted in paragraph [9] above, to institute an application for judicial review of decisions and orders of the County Court made during his 2018 trial. Mr Donohue's application for review of the Prothonotary's decision to refuse to seal that application was considered by a Judge of this Court, who declined to direct the Prothonotary to seal the proposed originating motion and gave full reasons for that decision.[15]

32 The Chief Justice has no power arising from that specific office to intervene in the decisions of the Court of Appeal, nor to revisit or reopen the Court's decision to refuse to direct the Prothonotary to seal an originating process. Mr Donohue's proposed originating motion refers to an alleged failure of the Chief Justice to perform 'responsibilities' and 'duties' under the Supreme Court Act[16] to respond to his complaints and to 'rectify ... failures' in the appeal processes,[17] but does not identify any particular section of the Supreme Court Act by which he asserts those alleged responsibilities or duties are imposed. The Supreme Court Act does not in fact impose any such duties or responsibilities on the Chief Justice.

33 The appropriate procedure for making any challenge to a decision of the Court of Appeal is to make an application for special leave to appeal to the High Court. An application may also be made to the Court of Appeal under Part 6.4 of the Criminal Procedure Act 2009 to hear an appeal if the Court of Appeal is satisfied that there is fresh and compelling evidence that should, in the interests of justice, be considered on an appeal. Mr Donohue has made such applications and they have been considered and dismissed with reasons.

34 Mr Donohue's proposed originating motion, in positing a duty on the part of the Chief Justice to respond to a complaint by intervening in or revisiting decisions of the Court of Appeal or Trial Division; and in attempting to seek judicial review of the purported 'decision' not to respond to these complaints, is both misconceived as a matter of law and an attempt to relitigate issues already determined by this Court. I agree with the Prothonotary that if sealed, the proposed originating motion and accompanying documents sought to be filed by Mr Donohue would constitute an abuse of process. The decision to reject the documents was correct.

35 For these reasons I decline to direct the Prothonotary to seal the originating motion.

[1] DPP v Donohue [2018] VCC 1578.

[2] Donohue v The Queen [2019] VSCA 160.

[3] Donohue v The Queen (No 2) [2019] VSCA 274.

[4] [2020] HCASL 130; [2020] HCASL 242.

[5] Donohue v The Queen (No 3) [2020] VSCA 302, [1].

[6] [2020] VSCA 302, [1] and [13].

[7] [2021] HCASL 45.

[8] Donohue v Sergeant Paul Phillips of Victoria Police [2022] VSC 558.

[9] Emphasis throughout in the original.

[11] The reasons were given on 20 September 2023, although dated in error 14 September 2023.

[12] Louise Goode v All Common Equity Housing Limited Governing Board Directors (Supreme Court of Victoria, J Forrest J, 19 October 2022), [8]; Ross v Smith and Ors (Supreme Court of Victoria, Keogh J, 16 December 2022), [14].

[13] LG (a pseudonym) v The Public Advocate [2021] VSC 583, [24].

[14] Donohue v The Queen [2019] VSCA 160; Donohue v The Queen (No 2) [2019] VSCA 274; Donohue v The Queen (No 3) [2020] VSCA 302.

[15] [2022] VSC 558 (O'Meara J).

[16] See proposed originating motion at [1], [2] and [3] of the claims, and 'Grounds' at [3] and [4].

[17] Proposed originating motion ground [5].