IN THE COUNTY COURT OF VICTORIA
AT Melbourne
COMMON LAW DIVISION	Revised
Not Restricted
Suitable for Publication	
General List

Case No. CI-23-05862

KEVIN SHARI	Plaintiff	
		
v		
		
STATE OF VICTORIA	Defendant	

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JUDGE:	HER HONOUR JUDGE CLAYTON	
WHERE HELD:	Melbourne	
DATE OF HEARING:	24 May 2024	
DATE OF RULING:	18 June 2024	
CASE MAY BE CITED AS:	Shari v State of Victoria (Ruling)	
MEDIUM NEUTRAL CITATION:	[2024] VCC 815		

RULING
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Subject:	CIVIL PROCEDURE – SUMMARY JUDGMENT – ABUSE OF PROCESS – NO REAL PROSPECT OF SUCCESS
Catchwords: 	Application by defendant for summary judgment – no real prospect of success – abuse of process – collateral attack on finding of another court – whether duty owed by police officer to investigate complaints – pleadings – no cause of action disclosed on pleading – self represented litigant
Legislation Cited:	Civil Procedure Act 2010, s62 and s63; County Court Civil Procedure Rules 2018, r23.01(1), 423.02
Cases Cited:	Cabassi v Vila (1940) 64 CLR 130; Lysaght Building Solutions Pty Ltd v Blanalko Pty Ltd [2013] VSC 201; General Steel Industries Inc v Commissioner for Railways (NSW) (1964) 112 CLR 125; UBS AG v Tyne (2018) 265 CLR 77; Smith v State of Victoria (2018) 56 VR 322; Soo v Victoria Legal Aid [2023] VSC 289; GLJ v The Trustees of the Roman Catholic Church for the Diocese of Lismore (2023) 414 ALR 635; Gesah v Ross & Ors [2013] VSC 165; Slaveski v State of Victoria [2010] VSC 441
Ruling:	Proceeding dismissed and judgment entered for defendant.

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APPEARANCES:
	Counsel	Solicitors	
For the Plaintiff	The plaintiff appeared in
person		
			
For the Defendant	Mr R Kornhauser	Office of the Victorian Government Solicitor	

HER HONOUR:

Application
1	Mr Shari issued proceedings against the State of Victoria alleging negligence by Victoria Police, among other allegations.
2	By Summons dated 11 April 2024, the State of Victoria seeks an order that: 
(a)	Summary judgment be entered in its favour on the ground that the plaintiff’s claim has no real prospect of success pursuant to s62 and s63 of the Civil Procedure Act 2010; 
(b)	Alternatively, that the plaintiff’s claim be dismissed or permanently stayed pursuant to rule 23.01 (1) of the County Court Civil Procedure Rules 2018 (“the Rules”) as an abuse of process;
(c)	Alternatively, that the plaintiff’s Amended Statement of Claim be struck out pursuant to rule 23.02 of the Rules. 
The Amended Statement of Claim
3	In his Amended Statement of Claim (“ASOC”), Mr Shari pleads;
(a)	He was employed as a social worker in a hotel quarantine facility during the COVID-19 pandemic;  
(b)	He faced bullying and abuse from a co-worker during his employment;
(c)	He pursued proceedings in VCAT against his employer and reached a confidential settlement of that claim;
(d)	He sent details of the alleged bullying and abuse to the Age newspaper, VCAT and a local politician;
(e)	As a result of his actions, his former co-worker was demoted and resigned her employment;
(f)	The former co-worker subsequently obtained employment at The Alfred Hospital;
(g)	The plaintiff felt a moral obligation to inform the hospital authorities about the former co-worker’s misconduct;
(h)	The former co-worker applied for a “PIO” against the plaintiff based on unfounded claims and recommendations by Constable Luke Connelly;
(i)	The plaintiff submitted an affidavit to the Court and to The Alfred Hospital;
(j)	He sent around twelve emails to the Court aimed at disproving the false claims underlying the “Apprehended Violence Order” against him;
(k)	He compiled over thirty pages of documents to present to the Court;
(l)	He received an email from a lawyer representing The Alfred Hospital, Mr Stephen Taffe, expressing difficulty accessing or viewing the documents from the court records;
(m)	Mr Taffe attempted to manipulate the proceedings and shift blame, which was a violation of ethical standards for legal professionals;
(n)	The plaintiff forwarded his defence documents to Mr Taffe;
(o)	The plaintiff sent between twenty and thirty emails to The Alfred Hospital;
(p)	The plaintiff sent a letter of complaint to The Alfred Hospital about Mr Taffe.  That letter did not mention his former co-worker, but complained about the misuse of government funds;
(q)	The Alfred Hospital forwarded the letter of complaint to the former co-worker, who then used it against the plaintiff;
(r)	The plaintiff has filed a case of perjury against the former co-worker, which is currently under investigation by the Criminal Investigation Bureau;
(s)	The plaintiff has “acted against” presiding Judicial Registrar Paton for allegedly ignoring evidence that contradicts the former co-worker’s claims.  The “judicial review” is investigating the matter;
(t)	Constable Mark Webster committed negligence, misconduct and perjury;
(u)	That negligence and misconduct caused proceedings to be initiated in the Magistrates’ Court against the plaintiff for breach of a personal safety order;
(v)	Constable Webster conducted an interview with the plaintiff about six months prior to the hearing, during which he refused the plaintiff’s request to consult a lawyer;
(w)	Constable Webster failed to adhere to proper procedures and standards;
(x)	Constable Webster submitted false evidence, including emails which were used to frame the plaintiff;
(y)	The first email was related to forty pages of documents previously provided to The Alfred Hospital. This was a legitimate complaint about the lawyer’s conduct, as he was abusing taxpayers’ funds and should not have been misconstrued as evidence against the plaintiff;
(z)	The second email Constable Webster knew to be false, as the plaintiff never authorised anyone to send any email pertaining to the matter at hand;
(aa)	Constable Webster failed to conduct a thorough investigation into the allegations made against the plaintiff;
(bb)	Proceedings against the plaintiff demonstrate negligence, as outlined in s21 of the Criminal Code Act 2002;
(cc)	Constable Webster’s failure to conduct an investigation, submission of false evidence, and attempt to manipulate the proceedings, are examples of negligence;
(dd)	Constable Webster engaged in an abuse of legal process by attempting to frame and manipulate the proceedings;
(ee)	Constable Webster’s conduct amounted to perjury;
(ff)	Constable Webster’s actions have had severe repercussions on the plaintiff’s life, particularly in terms of employment.  Due to the presence of this false accusation on his criminal record, the plaintiff has encountered significant difficulty securing employment;
(gg)	On 16 November 2023, the plaintiff received a letter from Tania Gallagher, Acting Superintendent Chief of Staff, saying that his perjury complaint had been forwarded to a different department;
(hh)	The plaintiff has doubts that his complaint was forwarded to the appropriate department.  This raises concerns regarding the handling of his complaint and the integrity of the process.  The plaintiff prays for relief in this matter, seeking compensation for all the suffering it has inflicted on him;
(ii)	In seeking relief, the plaintiff hopes to find some form of redress for the injustices he has experienced;
(jj)	It is important that Constable Webster be held accountable for his negligence, defamation, and perjury for the unfounded accusation on his criminal record, and that the plaintiff receive appropriate compensation for the damages incurred, including loss of employment opportunities and emotional distress.
4	The ASOC discloses no cause of action.  Various putative causes of action are mentioned:
(a)	negligence;
(b)	defamation;
(c)	“abuse of legal process”;
(d)	“misconduct”; and 
(e)	“perjury”.
5	The necessary elements of a cause of action in negligence, defamation, or misconduct in public office are not pleaded. The material facts relied upon to enable the Court and the defendant to understand how the case is put are not pleaded.
6	It is not apparent from the pleading how publication is said to have occurred in any claim for defamation.  If the “publication” is said to be that the plaintiff has “a false accusation on [his] criminal record”, this misunderstands the nature of the tort of defamation.
7	There is no tort of “abuse of legal process” or “perjury”.  If, as the defendant hypothesises, the plaintiff intended to plead a tort of collateral abuse of legal process, he has not pleaded the elements of the tort.  In particular, no improper purpose is alleged.
8	There is no tort of “perjury”.  If the plaintiff intended to plead negligent misstatement or injurious falsehood, he has not pleaded the elements of those torts.  In any event, it is not apparent where the supposed “perjury” is said to have occurred.  There was no trial and no evidence given or tendered by Victoria Police.  To the extent that the plaintiff alleges that statements by his former co-worker were “perjury”, she is not a party to this proceeding.
9	The pleading must be struck out pursuant to r23.02 of the Rules.
10	However, that does not dispose of the defendant’s application.  The defendant seeks judgment be entered in its favour, or, in the alternative, that the plaintiff’s proceeding be dismissed.  This would have the effect of finalising the plaintiff’s claim so that he cannot re-plead in a way that fixes the deficiencies in the current ASOC.
11	This requires an assessment of whether the plaintiff has an identifiable cause of action, or whether his proceedings are otherwise an abuse of process.
Background
12	The defendant relies on an affidavit of Sarah Mauriks, dated 29 April 2024, and the exhibits to that affidavit.
13	That affidavit, and those exhibits, disclose that Mr Shari had an Interim Personal Safety Intervention Order (“Interim PSIO”) made against him on 3 February 2022.
14	That Interim PSIO prevented the plaintiff from contacting previous, current, or future workplaces of the protected person, his former co-worker.
15	On 16 June 2022, the plaintiff sent an email to The Alfred Hospital (“The Alfred email”), the protected person’s employer, in which he wrote:
“Alfred Health is part of Australia's public healthcare system and offers hospital care and uses government funding.
 However, I tried to warn you about the conduct of one your employee, which is my legal and moral right and I did nothing wrong, the person involved subsequently tried to issue a avo against me, which I am going to do defend. However, what I cannot understand why is this individual using the hospital lawyer, when this is a personal matter , the lawyer used is a hospital lawyer paid by public funds , this is a wrong use of tax funds. I have to defend myself. 
 Why should this person get a tax funded lawyer. Unless this is addressed. I will file a case with the Auditor-general and ombudsman. This is a wrong use of tax funds.”
 (sic) 
16	A Final PSIO was made against Mr Shari on 18 July 2022, which prevented him from sending emails about the protected person to the protected person’s workplace, or causing another person to do so.  Mr Shari informed the Court that he had not contested the Final PSIO.
17	On 26 September 2022, an email purporting to be sent on behalf of Mr Shari was sent to The Alfred Hospital by a Stephen Brooks (“the Brooks email”).
18	On 11 November 2023, Mr Shari was charged with contravening the Interim PSIO on 16 June 2022 by sending The Alfred email, and contravening the Final PSIO by causing the Brooks email to be sent.  The informant was Constable Webster.
19	On 13 June 2023, those charges were heard in the Magistrates’ Court.  The transcript of that hearing discloses that Mr Shari’s counsel conferred with counsel for the defendant prior to the hearing and, by agreement, the second charge was withdrawn.
20	Mr Shari pleaded guilty to the first charge in relation to The Alfred email.  His counsel said that Mr Shari “does appreciate it was a breach and coming before the court has certainly brought home to him the seriousness of this matter”.  Counsel outlined the background circumstances, including that Mr Shari:
(a)	had been working in a quarantine scheme and was a “whistleblower”;
(b)	had concerns with how the protected person had conducted operations in that scheme;
(c)	was motivated by fear of further COVID outbreaks; 
(d)	had raised his concerns in an appropriate forum;
(e)	accepted that he had breached the Interim PSIO by contacting the protected person’s place of employment, but sent it to a “generic email address”; and 
(f)	had made no contact directly to the protected person.
21	The magistrate indicated that she was minded to not record a conviction, but rather place Mr Shari on an adjourned undertaking or a good behaviour bond that would expire on 17 July 2027, the date of the expiration of the Final PSIO.
22	After conferring with Mr Shari, his counsel said Mr Shari was prepared to enter into an undertaking in the terms the magistrate had proposed.  Accordingly, the magistrate adjourned the hearing to 16 July 2027 on an undertaking of good behaviour throughout the period.  She made a “non-conviction order”.
Summary judgment or dismissal
23	The Court may grant summary judgment if the plaintiff’s claim, or part of the claim, has no real prospect of success, or where the proceeding is an abuse of the process of the court.
24	In Lysaght Building Solutions Pty Ltd v Blanalko Pty Ltd, the Court of Appeal summarised the applicable test for determining an application for summary judgment as follows:
(a)	the test for summary judgment under 63 of the Civil Procedure Act is whether the defendant or 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); 
(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 the possibility that there might be cases yet to be identified in which it appears that, although a defendant’s or 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.  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.
The Defendant’s submissions
25	The defendant says the proceeding is an abuse of process, as it amounts to an impermissible collateral attack on the outcome of the Magistrates’ Court proceeding.
26	An abuse of process might occur where the Court’s procedures are used to cause unjustifiable oppression to a party, or where the proceeding otherwise brings the administration of justice into disrepute. 
27	In this case, the defendant says the administration of justice would be brought into disrepute because:
(a)	there was a hearing in the Magistrates’ Court where the plaintiff had an opportunity to be heard;
(b)	the plaintiff pleaded guilty to the charge;
(c)	the magistrate made a decision; and
(d)	this proceeding seeks to challenge the magistrate’s decision.  
28	In these circumstances, allowing the proceeding to continue is an abuse of process.  It must be dismissed.
29	In the alternative, the defendant says the proceeding has no real prospect of success.  
30	The plaintiff’s principal claim is in negligence.  It must fail, as Victoria Police owed no duty of care to the plaintiff.  There is no real prospect that he would establish such a duty is owed.  His other claims are without foundation.
The Plaintiff’s submissions
31	As I understand Mr Shari’s submissions, they are as follows:
(a)	The police owed him a duty of care to investigate his complaints about his former co-worker because he had reported incidents of bullying, violence, making false allegations against a co-worker, and racism;
(b)	Recent cases in Australia have shown that police can owe a duty of care to specific individuals.  In the case of Smith v State of Victoria, the court refused to strike out a claim by the plaintiff where the plaintiff pleaded that the police breached a duty of care;  
(c)	The police were negligent as they failed to reasonably protect him;
(d)	If the police had investigated his complaints about his former co-worker, they would have proved that she had a history of abuse; 
(e)	The Interim PSIO should not have been granted, and would not have been granted if the police had properly investigated his complaints about his former co-worker;
(f)	Constable Webster had a duty to investigate the complaint of abuse Mr Shari made before he charged Mr Shari with a breach of the Interim PSIO;
(g)	At the hearing of his breach of the Interim PSIO, Mr Shari was given a lawyer he had never met before, who did not know the background to the case and did not know Mr Shari’s profession;
(h)	Mr Shari wanted to plead not guilty to the charge.
(i)	The lawyer told Mr Shari that it would be difficult to get funding for a barrister.  The lawyer put mental pressure on Mr Shari and wrongly told him that the matter would not affect any employment check;
(j)	Mr Shari did not authorise the Brooks email;  
(k)	Constable Webster knew “the evidence” was fake, but introduced it to court for the sole purpose of increasing Mr Shari’s stress levels and causing him mental exhaustion; 
(l)	Because of his stress and mental exhaustion, and the possibility of a lenient ruling, he falsely pleaded guilty to the charge.  He “changed” his plea when he discovered how it was affecting his employment;
(m)	A Caucasian individual would not have faced charges under similar circumstances.  Caucasian individuals receive lenient punishments for more serious offences;  
(n)	To dismiss this case on the basis that it interferes with a decision of the magistrate would be flawed because judges can be biased; 
(o)	The legal system needs to be fair and accountable. There needs to be fairness and equity in the judicial process.  The magistrate gave a prejudicial ruling;
(p)	One of the purposes of tort law is to deter behaviour that offends community standards of reasonable care.  Negligence and racist behaviour offends community standards;
(q)	Holding Victoria Police accountable for their actions will address racist and negligent behaviour.  Dismissing the case will perpetuate racist and negligent behaviour in Victoria Police.
32	Mr Shari’s submission is primarily on two bases.  First, that the existence of a duty of care by police officers in these circumstances is not settled law and therefore his claim ought to be allowed to proceed.  Second, for policy reasons, it would not be in the interests of justice to dismiss his proceedings as an abuse of process, as this would perpetuate racist and negligent behaviour.
The claim is an abuse of process
33	Mr Shari, by this action, seeks a finding that he was not guilty of the charge to which he pleaded guilty in the Magistrates’ Court.
34	To succeed, this court would have to accept his claim that the charge brought against him was false and that he pleaded guilty to that charge because of some misconduct by Victoria Police.
35	The misconduct alleged appears to be that Constable Webster exerted mental stress to induce a guilty plea by knowingly charging Mr Shari with a false charge in relation to the Brooks email.
36	The fundamental difficulty Mr Shari faces is that his claim amounts to a collateral attack on a finding of the Magistrates’ Court.
37	As explained to Mr Shari during the hearing of this application, the occasion for him to ventilate his complaint about the charge was in the Magistrates’ Court.  That finding of the Magistrates’ Court remains undisturbed.  
38	If Mr Shari wanted to challenge the validity of the Magistrates’ Court decision on the basis that it was unfair because he had inadequate legal representation or was improperly advised, he could appeal that decision.  I understand he has taken this step.  He cannot launch a collateral attack through a civil claim. 
39	Mr Shari also alleges that the Interim PSIO should not have been granted, and had it not been granted he would not have been charged with the breach based on The Alfred email.  
40	The appropriate place for Mr Shari to make his argument that the Interim PSIO should not have been granted was at the contest hearing for the Final PSIO.  Mr Shari says he did not contest the Final PSIO because he was due to have some medical treatment and he was not particularly concerned about the existence of the PSIO at that time.  Perhaps it was only once he was charged with the breach and became aware of the impact on his employment prospects that the existence of the PSIO caused him concern.
41	Nevertheless, for whatever reason, he did not put his arguments as to why the Final PSIO should not be made when he had the opportunity to do so in the Magistrates’ Court.  He cannot now come to this court and seek to make those arguments in a civil claim. 
42	These proceedings are, accordingly, an abuse of process and must be dismissed. 
The claim has no real prospect of success
43	I have already found that the ASOC must be struck out and the proceeding must be dismissed.
44	I now turn to deal briefly with the defendant’s application, in the alternative, that the proceeding has no real prospect of success.
45	The defendant’s primary submission is that Mr Shari is unable to establish that Victoria Police owed him a duty of care.
46	In Gesah v Ross & Ors, the court held that, in the absence of exceptional circumstances, police officers do not owe a duty of care to an individual to investigate a complaint of actual or threatened criminal conduct.  Imposing such a duty would be inconsistent with the performance of a police officer’s duty to enforce the criminal law, which requires discretion in prioritising the use of investigative resources in the public interest. 
47	On the other hand, in Smith, Dixon J found that the Australian common law had not affirmatively recognised that a police officer can never owe a duty of care.  Although in many cases, and in many circumstances, courts have held police officers do not owe a duty, whether a police officer does owe a duty might depend on the facts and circumstances of a particular case.  Because of this, his Honour was not persuaded that no duty could exist, and he dismissed the application for summary judgment.
48	His Honour’s finding that he was not persuaded that a duty of care could not be owed, is not the same as a finding that a duty of care was owed. The circumstances of Smith are not comparable to the circumstances in this case.  
49	There is a real question as to whether Mr Shari could establish, in the circumstances of this case, whether the police owed him a positive duty to investigate the complaints he made against his former co-worker. On the authorities, it is unlikely Mr Shari would be able to establish such a duty existed.
50	However, I ultimately do not have to determine this question, because even if Mr Shari was able to establish that such a duty of care was owed, I am satisfied that his claim has no real prospects of success.
51	Mr Shari alleges that Victoria Police had a duty to investigate the complaints he made against his former co-worker.  These complaints were of bullying, abuse, violence, and racism.  
52	Separate from his complaints, his former co-worker sought and obtained an Interim and then Final PSIO against him.  It is the presiding magistrate who has to be satisfied that the Order can be made, either because the Order is appropriate in the circumstances, or because the Order is consented to or not opposed.
53	Mr Shari says if the police had investigated his complaints against his former co-worker, they would have realised that he, not she, was the victim. This misunderstands that it is not the police, but the magistrate, who has the power to make an intervention order.
54	An interim PSIO may be granted by the Magistrates’ Court if the court is satisfied:
(a)	on the balance of probabilities, that an interim order is necessary pending a final decision about the application:
(i)	to ensure the safety of the affected person; or
(ii)	to preserve any property of the affected person; and
(b)	that it is appropriate to make the Order in all the circumstances of the case.
55	A court may also make an interim order if a person has applied to a court for a PSIO and the parties to the proceeding have consented to, or do not oppose, the making of an interim order for the application.
56	Where a person has consented to, or not opposed, the making of a PSIO, a court can make the Order without being satisfied that it is necessary to ensure the safety of the person, to preserve property, or that it is appropriate to make the Order.
57	Mr Shari did not consent to the interim PSIO.  Therefore, the magistrate must have been satisfied, on the evidence, that the order was appropriate in all the circumstances.
58	A court may make a final order if a court is satisfied, on the balance of probabilities, that:
(a)	the defendant/respondent has:
(i)	committed prohibited behaviour against the affected person; and
A	is likely to do so again; and
B	the defendant’s/respondent’s prohibited behaviour would cause a reasonable person to fear for his or her safety; or
(ii)	stalked the affected person and is likely to do so again; and
(b)	the defendant/respondent and the affected person are not family members; and
(c)	it is appropriate in all the circumstances of the case to make a final order.
59	If a PSIO is consented to, or not opposed, a court may make the Order without being satisfied that the defendant/respondent has committed prohibited behaviour against the affected person, or is likely to do so again, or that it is appropriate in all the circumstances to make the Order.
60	Once the Interim PSIO was in place, Mr Shari was obliged to comply with its terms, even if he did not believe that the Interim PSIO was appropriate.
61	Mr Shari says the police had both a duty to investigate his complaints against his former co-worker and also to investigate his former co-worker’s allegations before charging him.
62	As set out above, the complainant in an application for a PSIO bears the burden of satisfying a court of the breach.  The police had received:
(a)	a complaint from the protected person;
(b)	The Alfred email;
(c)	the Brooks email; and
(d)	Mr Shari had denied sending any emails and had otherwise given a “no comment” interview.
63	It is not clear what additional investigation Mr Shari says Constable Webster should have undertaken prior to charging him.  On the basis of his submissions, it seems that the “investigation” the plaintiff says should have been conducted, is the investigation of his own complaints about his former co-worker.
64	The duty Mr Shari says exists, and was breached, has no causal connection to the fact that the Interim PSIO was granted or that he was charged with a breach of the Interim PSIO.
65	Even if the police had investigated his complaints against his former co-worker, there is no causal connection between that investigation and the harm he claims.  That harm arises from the fact that:
(a)	his former co-worker obtained an interim PSIO;
(b)	he did not contest the making of the Final PSIO;
(c)	he was charged with a breach of the Interim PSIO;
(d)	he pleaded guilty to the breach.
66	Mr Shari also complains that he was refused a lawyer during his police interview in relation to the breach.
67	He does not identify how this is causally related to the harm he says he suffered.  During his police interview, he said that he did not contravene any order or send any emails, and otherwise responded “no comment” to questions.  The interview does not record any request for a lawyer, but even if I was to accept that he requested and was denied a lawyer, there is no causal connection to the harm he claims.  He had a lawyer at the breach hearing and pleaded guilty.
68	Mr Shari also complains that Constable Webster deliberately charged him with a breach in relation to the Brooks email when Constable Webster knew the Brooks email was fake, in order to cause Mr Shari stress and mental exhaustion so that he would plead guilty.  This appears to be a claim of misfeasance in public office, or a claim of malicious prosecution.  Neither claim is pleaded by the plaintiff.
69	However, even if such claims had been pleaded, they would have no real prospect of success.  The Brooks email was purported to be sent on behalf of Mr Shari.  The charge in relation to that email was subsequently withdrawn.  There is no finding that it was a fake email or that Constable Webster knew it to be fake.  There is no evidence that the email was fake.  It was never put before the Magistrates’ Court, and was not relied on by the court.  
70	There is no real prospect that Mr Shari will be able to establish the many links required to succeed in this aspect of his claim, which would require this Court to accept that:
(a)	there was a conspiracy involving Mr Shari's former co-worker and The Alfred hospital and/or lawyer, Mr Taffe, to concoct a fake email purporting to be sent on behalf of Mr Shari;  
(b)	Constable Webster, knowing the email was fake, nevertheless relied on it to charge Mr Shari;
(c)	That charge was brought for the purpose of causing mental stress and exhaustion so as to induce Mr Shari to plead guilty to another charge. 
71	Mr Shari’s proceeding has no real prospect of success.
Policy and other considerations
72	Where a proceeding has no real prospects of success, a court may order that a civil proceeding proceed to trial, if satisfied that the 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 its merits is appropriate. 
73	Mr Shari complains about “perjury” by his former co-worker.  She is not a party to this proceeding.  This is not the forum for Mr Shari to ventilate those concerns and he has already made that complaint elsewhere.
74	Mr Shari complains that he was provided with incorrect legal advice in relation to his plea of guilty.  Neither Victorian Legal Aid nor his lawyer are a party to this claim.  This is not the appropriate vehicle for him to ventilate concerns about his legal advice.  That is a matter to take up with the relevant professional body.
75	Mr Shari alleges that the magistrate gave a “prejudicial ruling”.  Given Mr Shari’s submission that judges can have biases, I take this allegation to be that the magistrate was motivated by prejudice.  I have read the transcript.  There is no foundation whatsoever for the allegation that the magistrate was motivated by prejudice or bias.  She accepted his guilty plea, and rather than record a conviction, suggested that the hearing be adjourned on an undertaking of good behaviour for the period of the PSIO.  She gave his lawyer an opportunity to seek instructions as to whether that proposal was acceptable to Mr Shari.  
76	It was open to the magistrate to record a conviction, which she did not do.  I cannot see any basis upon which anything the magistrate said, or did, could be construed as motivated by bias, prejudice, or racism.  Mr Shari’s argument that dismissing his proceeding would subvert the role of tort law in upholding community standards, is wholly without merit.
77	Mr Shari submits that dismissing his claim will perpetuate racist and negligent behaviour in Victoria Police.  He asserts that a Caucasian individual would not have faced charges in similar circumstances. It is not apparent how this claim would or could address a policy concern about alleged racism within Victoria Police.  This claim is not an investigation into charging practices.  This claim, as set out above, turns on a narrow set of facts in relation to an uncontested PSIO and a plea of guilty to a breach of the PSIO. 
78	I am not satisfied that it is in the interests of justice to allow the proceeding to proceed, nor that a full hearing on the merits is appropriate.
79	Accordingly, summary judgment is entered in favour of the defendant.
80	The defendant’s application is granted.  I will hear from the parties in relation to the appropriate orders and costs.
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