In Re Thorpe [2025] VSCA 172 the Court states
In October 2023, Uncle Robbie Thorpe (‘the applicant’) sought to file a charge sheet and summons in the Magistrates’ Court of Victoria naming King Charles III as the accused and alleging that he had committed ‘continuing acts of genocide ... against First Peoples’. The Magistrates’ Court refused to issue the summons and did not initiate a proceeding.
By originating motion filed in the Trial Division on 7 March 2024, the applicant sought judicial review of the Magistrates’ Court decision. A trial was conducted on 19 July 2024 and on 5 February 2025 Richards J handed down her judgment. Her Honour held that the charge sheet did not disclose an offence known to law and that the Magistrates’ Court was correct to refuse to issue the proposed proceeding.
An application for leave to appeal from a decision of Richards J to refuse to accept an affidavit for filing was refused by McLeish JA on 2 August 2024.
The applicant has since filed an application for leave to appeal Richards J’s decision. He has also filed various applications other than for leave to appeal, which are voluminous and overlapping. Some of these additional applications have been accepted for filing. However, the Registrar refused to accept for filing four of the applications, pursuant to r 64.43 of the Supreme Court (General Civil Procedure) Rules 2015 (the ‘Rules’). Together these four applications seek more than 15 different orders, including orders for the joinder of additional parties, orders concerning intervenors, orders concerning the identity or racial background of the judges who are to hear his applications, and other orders concerning the conduct of the proceedings.
The applicant now seeks to have a Judge or Judges of Appeal direct the Registrar to accept for filing the four applications that were refused, pursuant to r 64.43(5) of the Rules.
For the reasons that follow, we will not direct the Registrar to accept the four documents for filing. ...
The issue in this case is whether the documents fall within r 64.43(1) or (2) — that is, whether: (1) they are irregular (r 64.43(1)(a)); (2) they are frivolous or vexatious on their face or by reference to any materials already filed or submitted for filing (r 64.43(1)(b)); (3) the filing of them would give rise to an abuse of the process of the Court (r 64.43(1)(c)); (4) they do not comply with the Rules or the requirements of any applicable practice note (r 64.43(2)(b)); and/or (5) they are not accompanied by all the documents required by O64 or any applicable practice note (r 64.43(2)(d)).
Consideration
In our opinion the four documents that have not been accepted for filing are irregular, and/or frivolous or vexatious on their face and by reference to other materials that have been filed or submitted for filing, and/or would give rise to abuse of process. In addition, some of the documents do not comply with the applicable rules or a practice note, or were not accompanied by all the required documents.
Document 495374
As noted above, document 495374 seeks 13 orders (set out in the annexure to these reasons). Many of these orders are not orders that the Court can or would make. In light of that fact, it was appropriate for the Registrar to refuse to accept the document for filing, even if some of the other orders sought might have been orders that the Court can or would make. It is thus necessary only to identify some examples of entirely inappropriate orders in order to make clear that the Registrar was correct not to accept the document for filing.
Proposed order 1 is that ‘Chief Justice Niall has conduct of these proceedings and this court file’.
This is not a suitable order to be made by the Court of Appeal on the motion of a party. A party has no entitlement to seek to have an identified judicial officer conduct a proceeding. Nor would a judge or judges of the Court of Appeal make such an order. The application for this order is frivolous, vexatious and irregular.
Proposed order 2 is that a ‘bench of five Aboriginal judicial officers be assembled to hear the application for leave to appeal and the appeal’.
Again, this is not a suitable order to be made by the Court of Appeal on the motion of a party. A party has no entitlement to seek to have a bench of a particular size or composition hear a proceeding. Nor would a judge or judges of the Court of Appeal make such an order. The application for this order is frivolous, vexatious and irregular.
Proposed order 3 is as follows: If there are not sufficient Aboriginal judicial officers in the Supreme Court of Victoria to assemble a bench of five Aboriginal judicial officers, then Chief Justice Niall to write to and seek to meet with the Attorneys-General of the State of Victoria and the Commonwealth of Australia to request the special appointment of sufficient Aboriginal judicial officers including the appointment of (i) Professor Irene Watson, Research Professor of Law, University of South Australia, and (ii) law graduate Dr Jaqui Katona , Moondani Balluk Indigenous Unit, Victoria University, and (iii) lawyer Paul Coe (iv) lawyer Michael Mansell (v) puralia meenamatta (“Uncle Jim Everett”), the Palawa man from the clan plangermairreenner (vi) Dr Aunty Mary Graham, Kombumerri and Hakka Wakka, Adjunct Associate Professor, University of Queensland — six names listed here in case of illness or other unavailability on the hearing dates.
It is plain that this Court cannot order Niall CJ to take the step sought. The application for this order is frivolous, vexatious and irregular.
Proposed order 10 is as follows: The Magistrates Court of Victoria is directed to retain counsel and participate properly in these proceedings as a normal party and respondent.
Again, it is plain that this Court cannot make an order in such terms directed to the Magistrates’ Court of Victoria. The application for this order is frivolous, vexatious and irregular.
In Thorpe v Magistrates' Court of Victoria [2025] VSC 22 the headnote notes that Thorpe sought to file a charge-sheet and summons in the Magistrates’ Court of Victoria to commence private prosecution against King Charles III for crimes of genocide under First Peoples’ sovereign laws, the common law, and div 268 of the Criminal Code Act 1995 (Cth)
The judgment states
On 20 October 2023, Uncle Robbie Thorpe sought to commence a private prosecution against King Charles III for crimes of genocide. He did so by filing a charge-sheet and summons in the Magistrates’ Court of Victoria, naming himself as the informant and Charles Phillip Arthur George Windsor as the accused. The offences alleged in the charge-sheet were continuing acts of genocide against First Peoples, contrary to First Peoples’ sovereign laws, the common law of Victoria, and div 268 of the Criminal Code Act 1995 (Cth).
On 29 December 2023, a senior registrar of the Magistrates’ Court refused to issue the proceeding, on the basis that the proper source of law had not been particularised and the proposed accused may be misled or prejudiced by this omission, and in those circumstances the issue of the proceeding would be an abuse of process. The proceeding was therefore returned unissued.
In this proceeding, Uncle Robbie seeks judicial review of the Magistrates’ Court’s decision. He seeks an order requiring the Magistrates’ Court to accept the charge-sheet and summons for filing and issue the summons. ...
At a directions hearing on 22 April 2024, I ordered that the Attorney-General of Victoria be joined as second defendant to the proceeding, on the basis that as the first law officer of the State of Victoria, her presence was necessary to ensure that all questions in the proceeding are effectually and completely determined and adjudicated upon. The Attorney-General subsequently filed written submissions and briefed Crown Counsel to appear at the trial of the proceeding on 19 July 2024.
At the trial, Uncle Robbie applied for me to disqualify myself from further conduct of the proceeding. I refused that application, and provide my reasons for that decision below.
In the course of his submissions at trial, Uncle Robbie challenged the legal foundation of the State of Victoria, in light of the widely acknowledged truth that the sovereignty of the First Peoples of Victoria was never ceded. He questioned the legitimacy of the Court’s jurisdiction, given the High Court’s rejection of the fiction of terra nullius and the previous use of that fiction to justify the Crown’s acquisition of Victoria. These large and important questions are currently being considered by the Yoorrook Justice Commission, and have prompted the Victorian Government to commence treaty negotiations with Victoria’s First Peoples.
While acknowledging the significance of the questions raised by Uncle Robbie, the only jurisdiction that I can exercise is the jurisdiction of this Court. I can only do that by applying the law of the State of Victoria to the questions for determination in this proceeding.
For the reasons that follow, I have concluded that the Magistrates’ Court was correct to refuse to issue the proposed proceeding. The charges alleged in the charge-sheet did not disclose an offence known to the law of Victoria.
The proceeding must therefore be dismissed.
Disqualification application
By summons filed 15 July 2024, Uncle Robbie sought orders including an order that I be disqualified from further conduct of the proceeding. The basis for this application was set out in his accompanying affidavit, as follows: (a) In my decision of Re Thorpe (No 2), I had quoted his submissions in full while making no comment about ongoing Aboriginal genocide and injustice to Aboriginal people at the hands of non-Aboriginal people. This amounted to ‘white denial’ that Aboriginal people would perceive as bias; (b) I am not Aboriginal; (c) There are no documents evidencing that I have accepted that Aboriginal sovereignty has never been ceded and that Aboriginal law is the only true law of this land; (d) I have publicly sworn allegiance to the monarchy, and have not publicly repudiated the Windsor family as genocidal invaders; (e) Consequently, I am reasonably likely to be perceived by Aboriginal peoples and others as biased against Aboriginal peoples.
The Attorney-General opposed the application, saying that the circumstances relied on by Uncle Robbie did not give rise to a reasonable apprehension of bias.
A judge is disqualified from hearing a case if a fair-minded lay observer might reasonably apprehend that the judge might not bring an impartial mind to the resolution of the questions for decision in the case. Applying this test involves first identifying what it is said might lead the judge to decide the case other than on its legal and factual merits, and then articulating a logical connection between that matter and the fear that the judge might not decide the case on its merits. The final step in the analysis is assessing the reasonableness of the asserted apprehension of bias.
At the same time, judges are obliged to hear cases assigned to them in which the Court’s jurisdiction has been regularly invoked. Judges ‘do not select the cases they will hear, and they are not at liberty to decline to hear cases without good cause’. In this case, which has been assigned to me to hear and determine, Uncle Robbie has regularly invoked the judicial review jurisdiction of the Supreme Court of Victoria.
On my appointment to the Court, I pledged allegiance to Her Majesty Queen Elizabeth II and her heirs and successors according to law. I also took the affirmation of office as a judge, to discharge the duties of my office according to law, without fear or favour, affection or ill-will.
The Court’s jurisdiction is conferred by the Constitution Act 1975 (Vic) and is recognised in ch III of the Commonwealth Constitution. The law to be applied by a judge of the Court is the law of the State of Victoria, in accordance with Victoria’s Constitution Act and the Commonwealth Constitution.
I do not accept Uncle Robbie’s assertion that pledging allegiance to the Crown and taking the affirmation of office might give rise to a reasonable apprehension that I might not decide this judicial review proceeding on its merits. These promises are essential to the office of a judge of the Supreme Court of Victoria, and have been made by every judge of this Court. One of us must hear and determine the case that Uncle Robbie has brought, and it has been allocated to me.;