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Slaveski v State of Victoria & Ors [2009] VSCA 6 (10 February 2009)

Last Updated: 17 February 2009

SUPREME COURT OF VICTORIA

COURT OF APPEAL

No 3872 of 2008

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APPLICATION ON SUMMONS

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Application for leave to appeal – Alleged threats to kill – Application for protection – Application for fire-arm licence – Application for intervention order or injunction – Applications dismissed.

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KELLAM JA:

1 On 5 September 2006 the applicant issued proceedings in the Supreme Court seeking damages against the State of Victoria and four named members of the Victoria police force. Subsequently on 5 September 2007 the applicant filed an amended writ and statement of claim naming a further 15 defendants and alleging that they were all members of Victoria police at relevant times.

2 The amended statement of claim alleges that on 8 September 2000 ten of the defendant police officers attended upon business premises occupied by companies of which the applicant was both a shareholder and director. The applicant alleges that subsequent to attending the premises those ten police defendants assaulted him on four separate occasions by throwing him to the floor, kicking him whilst he was on the floor, handcuffing his wrists and punching him in the face. He alleges that he suffered injury and loss and damage by reason of these assaults.

3 The statement of claim alleges further that in approximately December 2003 two of the defendant police officers trespassed upon the applicant’s business premises and made demands for payment of money on behalf of the ‘Good Guys’ retail store.

4 It is alleged further that in approximately March 2004 two of the defendant police officers trespassed upon the applicant’s business premises demanding items of property ‘formerly belonging’ to one Ameli Manevska.

5 By reason of the above alleged trespasses the statement of claim alleges that the applicant ‘was apprehended in a harmful and/or offensive conduct (sic) and suffered injury including dizzy spells, anxiety, depression and shock and thereby suffered economic loss’.

6 It is alleged further by the applicant that at the Mill Park police station on 22 June 2005 one of the named police defendants defamed him.

7 The statement of claim alleges further that on 13 December 2005 five of the named police defendants attended at the applicant’s business premises and arrested him. It is alleged that in doing so the applicant was handcuffed and restrained unreasonably and for an unwarranted period of time during the arrest. It is alleged further that at the time the named defendants were acting as servants or agents of the State of Victoria and were negligent and in breach of duty in the conduct of the arrest. The applicant alleges that he suffered injury, loss and damage as a result of such negligence.

8 The statement of claim alleges further that on 17 January 2006 and at his business premises the seventh-named police defendant in company with other police officers harassed, intimidated and stalked the applicant.

9 The statement of claim alleges further that on 8 June 2006 and on 13 July 2006 the eighth-named police defendant requested security guards to eject the applicant unlawfully from premises of the Children’s Court at Melbourne whilst he was there to provide evidence against the eighth-named police defendant in relation to a family dispute. Furthermore, it is alleged that the eighth-named police defendant stalked the applicant on 12 July 2006, 20 July 2006 and 14 August 2006.

10 It is alleged further that on 29 January 2007 the eleventh-named police defendant arrested the applicant wrongfully and maliciously and took him into custody.

11 Finally it is alleged that on 7 May 2007 the eighteenth-named police defendant threatened the applicant by telephoning him and saying ‘anybody can get shot these days, anytime, anywhere’.

12 By reason of these numerous events the applicant claims to have suffered injury, loss and damage.

13 In essence the defences filed on behalf of the State of Victoria and on behalf of each named defendant deny each allegation of assault, stalking, trespass and in addition deny that any loss or damage suffered by the applicant was caused by any unlawful or negligent conduct on their part.

14 The proceeding has had a protracted interlocutory history. However, pursuant to orders made by the Listing Master on 7 October 2008 the proceeding has now been fixed for trial on 3 August 2009.

15 On 26 September 2008 the applicant filed a summons seeking the following orders:

1. The Court grants an Injunction and/or Intervention Order against Victoria Police members (the defendants) according to the Schedule attached, namely Mill Park police station, Epping police station and Preston police station, including another police member from Epping police (station) Senior Constable T J Bateman.
2. The Court orders the defendants including Senior Constable T J Bateman not to: stalk, assault, harass, threaten, intimidate, telephone, or causing (sic) another person to engage in any other offensive behaviour towards the plaintiff and his three children.
3. The Court orders the defendants including Senior Constable T J Bateman not to approach the plaintiff and his three children within 200 metres, including not to approach the residence at 10 Whitehall Place, Lalor or any other properties jointly owned by the plaintiff and his family.
4. The Court orders that: the Chief Police Commissioner give protection to the plaintiff and his three children or the Court orders (that) the Chief Police Commissioner grants a licence to the plaintiff Lupko Slaveski for a firearm under s 32 of the Firearms Act 1996 to defend himself and his three children, because this problem has been going on for eight years.

Neither the Chief Commissioner of Police nor Senior Constable Bateman is a defendant to the aforesaid proceedings and no separate proceeding has been issued against either of them.

16 The summons was supported by an affidavit sworn by the applicant on 3 October 2008. By that affidavit the applicant asserts that twelve specific incidents of threats or harassment had taken place between 5 September 2007 and 23 September 2008.

17 The applicant alleges that these incidents commenced on 5 September 2007, the writ and the statement of claim having been served on the defendants on 4 and 5 September 2007. The first incident is said to have occurred on 5 September 2007 when Senior Constable Bateman apprehended the applicant and charged him with driving with a ‘not properly adjusted seatbelt’. The applicant alleges that Senior Constable Bateman took his licence and kept it for 49 days.

18 The second incident relied upon by the applicant is a hearsay assertion by the applicant’s 11 year old daughter that on 23 September 2007 a man telephoned the applicant’s home and said ‘we are in the backyard and we will kill you now’. The applicant deposes that he took the telephone from his daughter in the course of the telephone call, and heard ‘deep breathing’.

19 The third incident is said to have taken place on 19 October 2007 when the applicant was walking his dogs near his home. A blue Nissan Maxima motor car was parked nearby. The applicant states that as he walked past the car a man in the car opened his window and said ‘leave your dogs at home and I will fix you up’. The applicant deposed to words having been exchanged with which the man in the car said ‘go and take your medication you are f ... d, I will be back to finish you off’.

20 The fourth incident is said to have taken place on 4 March 2008 when the applicant states that he was taking his son to school. He said that a police car stopped in front of him blocking his way at the children’s crossing.

21 The applicant deposes to the fifth incident having occurred on 14 April 2008 when he went to a shopping centre with his wife and mother. The applicant states that they sat down to have coffee and opposite the place where they sat two men were seated having coffee and breakfast. The applicant asserts that one of those men was a serving police officer at Epping police station and that the men were looking at him at all times. He asserts that after he and his wife and mother had finished their coffee they left their table, with which the two men left their table and walked towards him at ‘close proximity’. He asserts that the two men continued to follow them for a short distance.

22 The sixth incident is said to have taken place on 1 May 2008 when the applicant took a friend to the Northland Shopping Centre. The applicant deposes that whilst he was sitting down to have coffee he ‘noticed two uniformed police officers cruising around the area’. He said that he observed three other males ‘all with earplugs on their ears cruising around that area including the coffee bar’. He observed that one of the men with ear phones sat opposite him at an empty table. That person was wearing cargo pants and at one stage he pulled a metal object from one of his side leg pockets and pointed it towards the applicant. The applicant states that it was ‘a gun’. The applicant called 000 and police came ‘after 15/20 minutes’. The police who did attend were the same police whom he had seen ‘cruising around earlier’.

23 The seventh incident is alleged by the applicant to have occurred on 26 May 2008 when he was appearing at the County Court in relation to an appeal being conducted by him. The applicant asserts that on the day of the hearing there were three police members in plain clothes in the courtroom, one of them being Sergeant Brewer from Epping police station. The applicant asserts that one of the police members called him ‘a stupid small man’. The applicant asserts that that person ‘looked and sounded’ like the person who had spoken to him on the occasion of the third incident involving the Nissan Maxima.

24 The eighth incident is asserted to have occurred on 25 June 2008 when the applicant was attending at the Supreme Court in relation to a civil matter. He asserts that a protective service officer was ‘flipping a book and was pointing his rude middle finger towards’ the applicant. The applicant asserts that the protective service officer commenced to sing ‘Dreaming of a White Christmas’.

25 The ninth incident is said to have occurred on 20 July 2008 when the applicant received a phone call at his home. He deposes that ‘a male voice started to talk and in the background I could hear another few voices’. The applicant asserts that three separate calls were made that evening. He asserts that he was offered ‘quarter of a million dollars, fake passports for myself and my family’. The applicant states that he recorded parts of the conversation and the original CD recording has been provided to an Assistant Commissioner of Police, Mr Cornelius.

26 The tenth incident is said to have occurred on 21 July 2008. The applicant states that as he was leaving the Supreme Court two police officers in plain clothes were parked in front of the Supreme Court in a grey/black new Holden. He asserts that one of those persons was the same person who had made threats from the Nissan Maxima on 19 October 2007 and called the applicant ‘a stupid small man’ on 26 May 2008 at the County Court.

27 The eleventh incident relied upon by the applicant is not a specific incident but relates to ‘threatening and prank phone calls’ that the applicant had received since 2005 and complaints made about those phone calls to police, about which the applicant states ‘nothing has been done’.

28 The final incident upon which the applicant relies is an event which is said to have happened at the Magistrate’s Court in Heidelberg on 23 September 2008. the applicant states that he was at that court in relation to the charge of failing to wear a properly adjusted seatbelt. It will be recalled that the applicant relies upon the fact that he was charged with this offence on 5 September 2007 as the ‘first incident’. The informant in that matter was Senior Constable Bateman. The applicant asserts that Senior Constable Bateman, in the presence of others in the courtroom, said ‘I have six bullets in my gun for you’.

29 It should be observed that none of the 19 named police officer defendants is stated by the applicant to have been responsible for any of the incidents in question.

30 Senior Constable Bateman, who is not a party to the proceeding, is said to have been involved in the first and twelfth incidents.

31 The application for the granting of the orders sought came on for hearing in the Practice Court on 8 October 2008. The applicant was self-represented. The defendants and the Chief Commissioner of Police and Senior Constable Bateman were represented. The application was dismissed.

32 On 22 October 2008 the applicant filed a summons in the Court of Appeal registry seeking leave to appeal against the orders made in the Practice Court on 8 October 2008. The proposed notice of appeal exhibited to the affidavit of the appellant filed in support of his summons states the proposed grounds of appeal to be as follows:

1. Denied natural justice.

2. Denied my Human Rights according to Charter of Human Rights and Responsibilities Act 43/2006.
3. Denied my equal opportunities under the Equal Opportunity Act 1995.
4. According to the Constitution Act 1975 – Sect 85, and Sect 75 the Supreme Court has unlimited jurisdiction and his Honour failed to exercise the Act.
5. According to the  Administrative Law Act 1978 ,  sections 3  and  7 , his Honour failed to apply the powers of the Act.
6. His Honour failed to exercise on the balance of probabilities according to section 21A(5) of the Crimes Act 1958, that the defendant/s has stalked the applicant.
7. His Honour was partially prejudiced.

33 As is perhaps apparent from the drafting of the above grounds, the applicant continues to be self-represented.

34 The hearing of the application was listed for 28 November 2008. Prior to the hearing of the application the respondents made application in writing to the Acting Registrar for the application for leave to appeal and the appeal to be heard instanter. The applicant did not oppose that course. Clearly the determination of the appeal at the same time as the application for leave to appeal is a sensible course, as the issues in respect of both applications are almost identical. The President of the Court of Appeal, having issued a certificate under s 11(1)(A) of the Supreme Court Act 1958, the hearing of the matter proceeded before a court constituted of two judges of appeal.

35 As stated above, the applicant sought ‘an injunction and/or intervention order’ against the 19 named police defendants as well as Senior Constable Bateman. Insofar as the applicant sought to appeal the decision of the trial judge in relation to the 19 named defendants and Senior Constable Bateman, no leave to appeal was necessary as the applicant had sought relief against those persons by way of injunction.[1] However, against those persons at least, the applicant requires an extension of time in which to commence his appeal under r 64.03(1)(a) of the Civil Procedure Rules. He requires leave to appeal the orders made in respect of his application in relation to the Police Commissioner and Senior Constable Bateman.

36 I turn now to deal with the grounds proposed to be raised by the applicant as well as I am able to understand them.

Ground 1 – natural justice

37 By his affidavit in support of his application for leave to appeal the applicant failed to provide any particulars of the basis upon which he asserts that he was not afforded natural justice at the hearing on 8 October 2008. Upon the hearing of his application before us the applicant asserts that the basis of his complaint of denial of natural justice is that his Honour ‘failed to exercise full jurisdiction’. I have read the whole of the transcript of the proceeding before the judge in the Practice Court and it is apparent that the applicant was given every opportunity, and indeed assistance from his Honour in order to enable him to put his case. There is no basis upon which it can be asserted that his Honour failed to accord the applicant natural justice.

Ground 2 – the applicant was denied his human rights under The Charter of Human Rights and Responsibilities Act 2006 (Vic)

38 The applicant’s second ground of appeal is that he was denied his human rights according to the Charter of Human Rights and Responsibilities Act 2006 (Vic).

39 It is to be observed that no submission was made before the trial judge that the Charter was engaged in any way. However, as I understand it, the applicant now seeks upon appeal to contend that he was denied his rights under the Charter by the Chief Commissioner of Police, and ‘police’ in general, and by Senior Constable Bateman who the applicant alleges threatened him on 23 September 2008 by saying ‘I have six bullets in my gun for you’.

40 The applicant seeks to rely upon ss 9, 10 and 17 of the Charter.

41 Section 9 of the Charter provides that ‘every person has the right to life and has the right not to be arbitrarily deprived of life’. The applicant contends that the behaviour of Senior Constable Bateman was a breach of his Charter ‘right to life’.

42 Section 10 provides that a person must not be –

(a) subjected to torture; or

(b) treated or punished in a cruel, inhuman or degrading way; or

(c) subjected to medical or scientific experimentation or treatment without his or her full, free and informed consent.

The applicant contends that the conduct of the named police defendants and Senior Constable Bateman amounted to torture and/or treatment in a cruel, inhuman or degrading way.

43 Section 17 of the Charter provides that –

(1) Families are the fundamental group unit of society and are entitled to be protected by society and the State.

(2) Every child has the right, without discrimination, to such protection as is in his or her best interests and is needed by him or her by reason of being a child.

44 As I apprehend the applicant’s argument it is that the threats made by unnamed persons on his telephone are such that his family requires protection.

45 As stated above the argument that the Charter was engaged by the conduct of the Chief Commissioner of Police and others was not raised before the trial judge. In the absence of exceptional circumstances that fact is fatal to the success of this ground of appeal. As stated by the High Court in a joint judgment in Metwally v University of Wollongong (No 2)[2]:

It is elementary that a party is bound by the conduct of his case. Except in the most exceptional circumstances, it would be contrary to all principle to allow a party, after a case has been decided against him, to raise a new argument which, whether deliberately or by inadvertence, he failed to put during the hearing when he had an opportunity to do so.[3]

46 There are no exceptional circumstances in the case before us, nor did the applicant argue before us that there are any exceptional circumstances which would enliven any discretion to be exercised in his favour upon appeal so to permit him to rely upon an argument which was not put before the trial judge. Furthermore, and in any event the arguments proposed to be mounted by him and based upon the Charter are in my view objectively hopeless. The matters about which he makes complaint are simply not engaged by the Charter.

Ground 3 – denial of ‘ equal opportunities under the Equal Opportunity Act’

47 The applicant contends that the respondents are in breach of ss 96 and 97 of the Equal Opportunity Act 1995 in that he has been ‘victimised’ by the named respondents in the alleged assaults, stalking, harassment and threats made to him since he issued the proceedings. As with the proposed ground of appeal dealing with the Charter, no submission was made to his Honour pursuant to the Equal Opportunity Act. In the hearing before his Honour the applicant did not rely upon any argument to the effect that the Act was relevant in any way. For the reasons set out above that fact alone is fatal to any possibility of success on this ground. There are no exceptional circumstances which justify the raising of an argument upon appeal which was not raised below. Furthermore, even if the issue had been the subject of argument before his Honour the point now sought to be agitated by the applicant is without any substance. No relevant status or attribute protected by the Equal Opportunity Act is identified by the applicant.[4] Furthermore in order to obtain relief under the Act, it is a pre-requisite that a complaint be made to the Victorian Equal Opportunities and Human Rights Commission under that Act.[5] There is no evidence that any such complaint has been made. Original jurisdiction does not lie with the Supreme Court to consider complaints under that Act.

Ground 4 - the failure to exercise the unlimited jurisdiction of the Court

48 The applicant argues that the trial judge failed to exercise the ‘unlimited jurisdiction’ of the Supreme Court. He relies upon s 85(1) of the Constitution Act 1975 which provides that the Supreme Court of Victoria has ‘unlimited jurisdiction’ as the superior court of Victoria. The applicant’s argument relates to the refusal of the trial judge to make orders that the Chief Commissioner of Police grant him a firearm licence and provide protection to him and to his children. The trial judge dealt with these matters in the following terms:

[The applicant] seeks orders that the Chief Commissioner of Police give protection to him and his three children or alternatively he asks for orders that the Chief Commissioner of Police grant him a licence under s 32 of the Firearms Act.

The Court, as I have said, has limited powers. Those powers are limited by the law. Because the Court must obey the law, the Court cannot exercise or purport to exercise or attempt to exercise powers which the law does not give the Court. The question of whether the Chief Commissioner of Police should order that protection be given to individuals is a matter which is within the power of the Chief Commissioner. It is not within the power of the Court to order the Chief Commissioner to give such protection.

Similarly, the power to lawfully grant a licence to anybody to possess a firearm is a power which is given by the Firearms Act and the Firearms Act does not give the power to the Court. That power reposes in the Chief Commissioner, and perhaps in certain other people, but not in judges.

49 The applicant argues that his Honour was in error in concluding that he did not have power to order that the Chief Commissioner of Police give protection to him and to his three children and to order the Chief Commissioner of Police to grant a firearm’s licence. In addition, as I understand the applicant’s argument, he contends that his Honour’s failure to make an intervention order against police and in particular in declining to make an intervention order against Senior Constable Bateman was an error in that his Honour failed to exercise the ‘unlimited jurisdiction of the Supreme Court’.

50 However, the applicant’s arguments are based upon a misunderstanding of what it is that ‘unlimited jurisdiction’ means. First, of course, is the fact that such jurisdiction relates to the proper exercise of judicial power and not the exercise of an administrative function such as the granting of a licence. Furthermore, the exercise of an inherent power by a superior court is ‘not at large’. Moreover, the inherent power and the jurisdiction conferred by s 81 of the Constitution Act 1975 are to be exercised only as necessary for the administration of justice. [6]

51 Dealing first with the question of the intervention order which was sought to be made in favour of the applicant, it is apparent that the applicant is referring to an order such as that contemplated by s 21(5) of the Crimes Act 1958 and s 4 of the Crimes (Family Violence) Act 1987. The power to grant an intervention order is vested in the Magistrate’s Court or, in some circumstances in the Children’s Court. The Supreme Court has no statutory power to grant an intervention order of the nature sought by the applicant. The applicant has made no application before the Magistrate’s Court. There is no basis upon which this Court might make an intervention order of the type sought by him.

52 Similarly, in respect of the submission that the trial judge should have ordered that the Chief Commissioner of Police grant the applicant a firearm licence under the Firearms Act 1996, the trial judge observed correctly that the Court has no statutory power to make such an order. Applications for such licences are governed by Division 8 of Part 2 of the Firearms Act 1996. Section 31 of that Act provides that application is to be made to the Chief Commissioner of Police. If the Chief Commissioner refuses to grant a firearm licence, application may be made to the Firearm’s Appeals Committee for a review of the decision. A refusal to issue a licence by that committee is in turn an administrative decision reviewable by VCAT. There is no evidence before us that the applicant has made any application for a firearm licence in accordance with the legislation. This Court does not have power to issue a licence itself nor to compel the Chief Commissioner to do so in the circumstances. Had it been the fact that the applicant had made proper application in accordance with the Firearms Act, and had it been the fact that he had sought review of the failure to grant him a firearm licence by VCAT, this Court might have the jurisdiction to review the decision of VCAT on the basis that it had made an error of law. However that is not the circumstance before the Court and the trial judge was quite correct in refusing to make the order sought.

53 Furthermore, it is submitted by the applicant that in refusing to grant the order sought by him that the Chief Commissioner of Police give ‘protection’ to the applicant and to his three children, the trial judge failed to exercise the ‘unlimited jurisdiction’ granted to the Court by s 85(1) of the Constitution Act. The nature of the protection sought to be ordered is entirely unclear. However in his affidavit in support of his application, the applicant states that he wants the Court to order the Chief Commissioner of Police and/or the State of Victoria to ‘pay me a place to move interstate (New South Wales) because some of my relations are there’. This does suggest that the applicant is seeking to invoke some aspect of the Victim’s Protection Act 1991. Section 3A of that Act provides that the Chief Commissioner of Police may ‘take such action as ... necessary and reasonable to protect the safety and welfare of a witness or a member of the family of a witness’. Section 3B gives to the Chief Commissioner the ‘sole responsibility’ of deciding whether a witness should be included in the witness protection program. There is no evidence that the applicant has made any application for inclusion in that program. True it is that there is evidence that the applicant has written to the Chief Commissioner of Police in vague and general terms seeking ‘protection’ from harassment and threats from police officers. However it is a matter for the Police Commissioner to consider the circumstances raised by the applicant and to make such administrative decisions as she sees fit. It is not within the power of this Court to order that she provide ‘protection’ in the broad and unparticularised sense suggested by the applicant.

54 This ground has no substance.

Ground 5 - failure to apply ‘the powers’ of the  Administrative Law Act 

55 The applicant’s fifth ground of appeal is that his Honour failed to apply the powers contained in  ss 3  and  7  of the  Administrative Law Act 1978 .  Section 3  of the  Administrative Law Act  states:

Any person affected by a decision of a tribunal may make application (hereinafter called an application for review) to the Supreme Court for an order calling on the tribunal or the members thereof (hereinafter called an order for review) and also any party interested in maintaining the decision to show cause why the same should not be reviewed.

Section 7 of the Act states:

Upon the return of the order for review, the Court may discharge the order or may exercise all or any of the jurisdictional powers and grant all or any of the remedies which upon the material adduced and upon the grounds stated in the order might be exercised or granted in proceedings in relief or remedy in the nature of the certiorari, mandamus, prohibition or quo warranto or in proceedings for a declaration of invalidity in respect of the decision or for an injunction to restrain the implementation thereof and may extend the period limited by statute for the making of the decision but shall not exercise any other jurisdiction or power or grant any other remedy.

56 The applicant contends that the trial judge ‘did not apply any’ of the powers granted to him by the  Administrative Law Act 1978 .

57 First, it should be observed that no argument relying upon the  Administrative Law Act 1978  was raised before the trial judge. For the reasons set out above[7] the ground of appeal which relies upon the  Administrative Law Act  is based upon an argument which was not considered by the Court below and should not be considered by the Court of Appeal. In any event the application to rely upon this ground is futile. No decision has been made by a ‘tribunal’ within the meaning of the Administrative Law Act 1975 nor has any application for review of such decision been made in this Court. In such circumstances the trial judge had no power to make any order whatsoever under that Act.

Ground 6 - failing to ‘exercise on the balance of probabilities according to s 21A(5) of the Crimes Act 1958, that the defendant/s has (sic) stalked the applicant’

58 The power to make an intervention order by both the Crimes (Family Violence) Act 1987 and by s 21A of the Crimes Act 1958 is vested in the Magistrates’ Court and in some circumstances, the family division of the Children’s Court. The trial judge had no power under either act to make an intervention order in respect of the alleged ‘stalking’ by the ‘defendants’ or any one of them. Furthermore the affidavit material filed by the applicant did not contain any specific allegation that any one of the named police defendants had been responsible for any of the alleged incidents referred to in his affidavit. It would appear that the applicant believes that one or more of the named defendants is responsible for or has incited the incidents which he has stated to have occurred, but there was no evidence before the Court that that was so. It is merely a matter of surmise and speculation on behalf of the applicant. There was no evidentiary basis for his Honour to have made any order granting injunctive relief against any of those defendants.

59 The applicant did however assert that Senior Constable Bateman was responsible for charging him with wearing an improperly adjusted seatbelt and with making the alleged threat at Heidelberg Magistrate’s Court on 23 September 2000. Both of these matters were considered by his Honour.

60 His Honour said that if the complaint was made out that Senior Constable Bateman had charged the applicant with wearing an ‘improperly adjusted seat belt’ that might well demonstrate ‘officious behaviour’ on the part of that policeman. Indeed, his Honour said:

One would ask what is a policeman doing worrying about an improperly adjusted seatbelt. If a citizen were charged with that offence, then there may be justification for it in some circumstances, but one would wonder whether or not the police were simply being officious.

His Honour however did not regard the evidence before him as establishing that this incident was of such seriousness that it justified the grant of injunctive relief. That view was, in my opinion, entirely open to his Honour.

61 On the other hand his Honour regarded the allegation made by the applicant that Senior Constable Bateman had threatened him in the Heidelberg Magistrate’s Court as a serious matter. He said:

That, if it were made out, is a serious threat, one that – if there was evidence to support it – would warrant a charge being laid. Indeed, if there was evidence to support it, it would warrant a serious charge being laid.

However, his Honour concluded that the evidence before him was not sufficient for him to conclude that the threat was made. He said that he was

... particularly influenced by the fact that the only evidence before me is that of Mr Slaveski, yet he himself says in the very affidavit that makes this allegation, that the threat was made in front of his children and in front of everybody in the courtroom. If that were the case, then I would expect that at least some additional evidence apart from that of Mr Slaveski would be put before the court as corroboration.

In my view that conclusion was entirely open to his Honour. Accordingly there was no basis upon which his Honour should have granted injunctive relief against Senior Constable Bateman.

Ground 7 – His Honour was ‘partially prejudiced’

62 The basis of the complaint that the trial judge was ‘partially prejudiced’ against the applicant is said by the applicant, in the course of his oral submissions before us, to rest on four statements said to have been made by his Honour in the course of the hearing of the application in the Practice Court.

63 First it is argued that a remark that ‘no-one was killed’ was made by his Honour and that such a remark reflects prejudice against the applicant on his Honour’s part.

64 In the course of his judgment his Honour said:

The second incident is described by the applicant as one in which a phone rang. It was answered by one of Mr Slaveski’s children. The caller is reported as saying to the child: “We will kill you now”.

The threat to kill is a very serious threat. On this occasion, nothing happened after it was made. Nobody was killed. That, of course, is something for which we all must be thankful. Nevertheless, and while never discounting the seriousness of such a threat if indeed it was made, one must retain a sense of proportion and balanced judgement. Children can be mistaken about what was said to them, especially if their parents are constantly telling the children that they are under threat.

It is necessary for me to repeat: making a threat to kill is a very serious offence. If a police officer is proven to have threatened to kill anybody, that would be an especially serious matter. Were there to be credible evidence that a police officer had behaved in this way, that police officer would no doubt be charged with threatening to kill.

65 In my view the statement made by his Honour in the course of his consideration of what the applicant described as the second incident was a simple statement of fact. It revealed no prejudice or bias on the part of his Honour towards the applicant.

66 Secondly, it is argued by the applicant before us that his Honour’s statement that there was ‘no corroboration’ reveals his bias. His Honour does not appear to have used the words ‘no corroboration’ in his judgment, nor did he use those words in the course of the hearing in the Practice Court. However, in his judgment and when dealing with the twelfth incident which was said to have occurred at the Magistrate’s Court at Heidelberg on 23 September 2008 his Honour said:

If sustained, the allegation against Mr Bateman would probably amount to a threat to kill, certainly a very serious threat warranting criminal prosecution. The evidence before me, however, is not sufficient for me to conclude that the threat was made.

As stated above his Honour stated that he was particularly influenced by the fact that there were said to be a number of witnesses of the alleged incident but there was no additional evidence put before him other than that of the applicant.

67 The incident which is said to have occurred in the Magistrate’s Court at Heidelberg on 23 September 2008 is said by the applicant to have happened in the company of the applicant, his three young children, his wife, and a family friend, one B Tanceski and other people such as the Magistrate’s assistant, the prosecutor whose name was said to be Graham Preston and other members of the police force. The applicant asserts that Mr Bateman who was the informant in the case against the applicant that day said ‘I have six bullets in my gun for you’. The applicant states that he stood up in the court room and accused Mr Bateman of threatening him. The applicant states that Mr Bateman ‘then got up against me but was pulled away by the prosecutor ... and the associate from the magistrate called security’.

68 In my view his Honour was entitled to conclude that in circumstances where there were said to be a number of witnesses to the alleged event, the applicant should have provided evidence to the court by way of affidavit made by such witnesses. Although it might not be surprising that the police witnesses would not assist in that regard, the simple fact is that the applicant’s wife, a family friend and his three children were said to have been present but none of these persons provided affidavits. In my view his Honour’s conclusion about this matter was reasonably open to him and certainly does not reflect any prejudice or bias on his part.

69 In the course of the hearing before us, however, the applicant stated that not only did his Honour express the opinion that the applicant’s version of events was uncorroborated but that he ‘refused’ to let the applicant call witnesses before him to corroborate the applicant’s version of events.

70 In the course of the hearing before his Honour the following exchange took place:

HIS HONOUR: Where in your affidavit do you say that any of the 19 police officers have told Mr Bateman to stalk or assault or harass you.

MR SLAVESKI: You want me to put that in there. I can just put it in now and just swear it. I can just adjourn the matter and just hand write it because this is what it is.

HIS HONOUR: But court proceedings can’t be conducted with parties running in and running out changing documents that have been prepared and served on the other party. The purpose of requiring these matters to be put in proper form is to give the opposition proper notice of the allegations that are being made and so for me to enable you simply to swear another affidavit ...

MR SLAVESKI: I can just add to it your Honour.

HIS HONOUR: ... would be something that could be only done if the other party, the State of Victoria, the Chief Commissioner and the 19 policemen were given proper notice of the new evidence.

MR SLAVESKI: So they are getting me on technicalities, is that what you’re saying to me sir?

HIS HONOUR: It’s not a technicality to have to prove the case that you allege against somebody. We are not talking about technicalities. We are talking about a fundamental aspect of any system of justice. If you’re making an allegation against somebody, as you are, then you have to prove that allegation by properly, lawfully admitted evidence and my problem here is that your evidence is contained in your affidavit of 3 October and that evidence does not support the claims that you make in paragraph 2 of your summons.

MR SLAVESKI: But according to what I understand, and I don’t have a lawyer representing me, your Honour, with the utmost respect, I need your help in this and I need you to use your powers as an honourable justice. There is plenty of evidence before you that these people have sent their colleagues that work in the police station, in the same police station, it specifies there in paragraph 14 the police officer is from Epping police station, T J Bateman. He even said in front of the court, in front of the court on 23 September, in front of Graham Preston. Imagine your Honour now, with all respect, standing the matter down, you go into your chambers and you say to your assistant, Samantha play this CD and the informant says “stop”, then we’re all sitting here. He says “I’ve got six bullets in my gun”. It’s the same thing, your Honour. How much more evidence do you need than that. I’ve got a gentleman here. He’ll swear on the Bible, my children were there. You know, it sees the ...

HIS HONOUR: One of the problems which might not be so serious that it can’t be overcome, is that Mr Bateman is not a defendant to these proceedings.

MR SLAVESKI: Why are they defending him if he is not a defendant. I’ve got a letter here.

71 As is apparent from the above transcript there was no application made to his Honour to have further evidence called or to have further evidence placed on affidavit. It is simply not the fact, as asserted before us, that his Honour refused to let the applicant call further evidence before him.

72 The final matter upon which the applicant seeks to rely in support of his complaint that the trial judge was ‘partially prejudiced’ is the fact that his Honour used the words ‘what more can you ask for?’ in the course of the hearing of the application in relation to the delay of the police members in response to a 000 call made by the applicant. I am unable to find in the transcript where his Honour used these words nor were we directed to the place where his Honour is said to have made such a remark. The transcript, however, does contain a number of statements by his Honour to the effect that he did not have the power to make a number of the orders sought by the applicant. In my view, even if these words were used they do not reflect any bias or prejudice on the part of his Honour. In the course of his oral submissions before us the applicant stated that he had written to the Chief Commissioner of police on 8 May 2008 making complaint about the behaviour of police officers. The letter in question which was exhibited before his Honour included the following statement:

On 1 May 2008, I went to the northern shopping centre, and I was threatened with a gun to be shot. I called 000 and two police officers came. Also I spoke to Andrew Gutske from Purana Taskforce and emailed him the photo I took of the man that threatened me with the gun.

73 In the course of discussion about the letter his Honour said:

I’ve read that letter. I’ve noted that when you say you rang 000, two police officers came. I can’t enter into a debate with you about particular instances at particular times. But without seeking to enter into a wide debate, it does seem to me that if you called 000 and two police officers respond what more can you ask for.

MR SLAVESKI: Your Honour, they came after 10 to 15 minutes and they were just cruising around. They were part of that – because the gentleman will say, Mr Dimitria Tanchski, he was there in the day, he just here now, he was there. We saw the man cruising around and there were men with earplugs, your Honour, headphones.

HIS HONOUR: Mr Slaveski, that may assist you to understand how it is that I can’t help you with that kind of problem. I can’t make orders which will ensure that after you ring 000, the police will come up in two minutes rather than 10, and then demonstrate that they are independent of other police about which you have concerns.

74 In my view the remark made in the course of the discussion by his Honour was not evidence of any bias or prejudice. It was a statement made in the course of endeavouring to explain to the applicant that the judge did not have wide powers to rectify every complaint made by the applicant about his dealings with the Victoria police force.

75 There is no basis to the ground relied upon by the applicant that the judge was ‘partially prejudiced’ against the applicant.

76 For the above reasons, leave should not be granted to permit the applicant to appeal out of time in respect of his proposed appeal against the defendants in the proceeding nor should he be granted leave to appeal in relation to the trial judge’s dismissal of his summons against the Chief Commissioner of Police and Senior Constable Bateman.

77 Although in general the interests of justice almost always require that an extension of time be granted for leave to appeal where there is a satisfactory explanation for non-compliance and no prejudice is suffered by the other party, there are cases in which the Court can be satisfied that the appeal is so devoid of merit that it would be futile to extend time.[8] This is such a case.

78 However, and notwithstanding my view that the applicant has not established any sound basis upon which he might appeal the decision of the trial judge, it is appropriate to repeat some of the things said by his Honour.

79 First, as his Honour pointed out, the allegation made against Mr Bateman is a serious matter. As his Honour stated, if the applicant was ‘seriously concerned’ about those alleged threats the appropriate authority to which allegations of that kind should be made is in the first instance to the Ethical Standards Department of the police force.

80 Secondly, and as his Honour said:

I have no reason to think that, if the Ethical Standards Department were given credible evidence that a member of the police force had threatened a citizen with death, they would not act upon that evidence. Just as a court cannot and should not act upon insubstantial evidence when dealing with a very serious charge, so the Ethical Standards Department must assess the credibility of evidence put before it and, taken together with the seriousness of the allegation, decide upon an appropriate response.

If a citizen were threatened in that way, the citizen’s first point of contact with the authorities would be the police, and I would expect the police to do their duty and investigate the allegation – and investigate it to the extent that the evidence warranted. If there were any credible evidence, then the matter would normally be referred to the Director of Public Prosecutions, and the Director would then decide whether or not the evidence was sufficient to

warrant prosecution. That is how the matter ought to be dealt with.

81 I agree with his Honour’s remarks in this regard. Indeed if the applicant, having made appropriate representations to the Ethical Standards Department of Victoria Police remained dissatisfied, he would be entitled to bring the matter to the attention of the independent Office of Police Integrity.

82 This Court however does not have the power to investigate the applicant’s complaints and he has not established any basis upon which the relief sought by him should be granted.

83 His application for leave to appeal and his oral application for leave to appeal out of time should be refused.

DODDS-STREETON JA:

84 I have had the opportunity to read the reasons for judgment prepared by Kellam JA. I agree with the orders proposed by his Honour, for the reasons he states.

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[1] Section 17A(4)(b)(ii) of the Supreme Court Act 1958.

[2] 59 ALJR 481, 483; (1985) 60 ALR 68, 71.

[3] See also Coulton v Holcombe [1986] HCA 33; (1986) 162 CLR 1, 7 and Whisprun v Dixon [2003] HCA 48; (2003) 200 ALR 447.

[4] See s 6 and s 13 to s 68 Equal Opportunity Act 1995.

[5] See Part 7 – Equal Opportunity Act 1995.

[6] Reid v Howard [1995] HCA 40; (1995) 184 CLR 1, at 17.

[7] See para 45.

[8] Jackamarra v Krakouer (1998) 195 CLR 515, 521.