› Prosecutorial discretion — insusceptibility to judicial review
Administrative law
› Judicial review
› Supervisory jurisdiction of Supreme Court — constitutional limits
Criminal law
› Private prosecutions
› Director of Public Prosecutions — power to take over and withdraw charges — Public Prosecutions Act 1994 (Vic) s 22(1)(b)(ii)
Practice and procedure
› Summary judgment
› No real prospect of success — Civil Procedure Act 2010 (Vic) ss 62, 63
Quick Take
1A decision by the Director of Public Prosecutions to take over a private prosecution under s 22(1)(b)(ii) of the Public Prosecutions Act 1994 (Vic) and withdraw the charges is insusceptible of judicial review, even for jurisdictional error, following Maxwell v The Queen, Likiardopoulos v The Queen, and Harkness v Banks (No 2) — though the question whether prosecutorial discretion is truly immune from review for jurisdictional error remains open pending the appeal of Harkness.
2Where the Director has taken over a private prosecution, the original private prosecutor ceases to be a party to the Magistrates' Court proceeding and has no standing to address the Magistrate or claim procedural fairness when the charges are formally withdrawn and struck out.
3Where a plaintiff brings a judicial review proceeding raising a legal question already authoritatively determined against them in a prior proceeding involving the same plaintiff and the same constitutional question, the proceeding is frivolous, vexatious and an abuse of process warranting summary judgment and summary dismissal.
