Attorney-General v Slaveski
[2014] VSC 48
•25 February 2014
| IN THE SUPREME COURT OF VICTORIA | Not Restricted | |
AT MELBOURNE
COMMON LAW DIVISION
No S CI 5803 of 2012
IN THE MATTER OF an application pursuant to s 21 of the Supreme Court Act 1986
BETWEEN:
| ATTORNEY-GENERAL FOR THE STATE OF VICTORIA | Plaintiff |
| and | |
| LUPCO SLAVESKI | Defendant |
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JUDGE: | WILLIAMS J | |
WHERE HELD: | Melbourne | |
DATES OF HEARING: | 20 and 21 June, 14 August, 2, 3, 4 and 16 September 2013 | |
DATE OF JUDGMENT: | 25 February 2014 | |
CASE MAY BE CITED AS: | Attorney-General v Slaveski | |
MEDIUM NEUTRAL CITATION: | [2014] VSC 48 | Revised 26 February 2014 |
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PRACTICE AND PROCEDURE – Vexatious litigant – Whether proceedings ‘vexatious’ – Whether ‘habitually and persistently’ instituted – exercise of discretion – Supreme Court Act 1986, s 21.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr R Knowles | Victorian Government Solicitor |
| For the Defendant | In person | |
| Amicus curiae in support of the Defendant | Mr Glick SC |
TABLE OF CONTENTS
The hearing of the application........................................................................................................... 2
Section 21 of the Supreme Court Act 1986......................................................................................... 6
Instituting proceedings................................................................................................................... 8
Interlocutory applications............................................................................................................... 8
Vexatiousness.................................................................................................................................. 9
Proceedings brought ‘habitually’ and ‘persistently’.................................................................... 10
‘Without any reasonable ground’................................................................................................. 11
The Court’s discretion................................................................................................................... 11
The Attorney-General’s material..................................................................................................... 11
Mr Slaveski’s material...................................................................................................................... 12
The proceedings said to be vexatious.............................................................................................. 13
Slaveski & Sky Empire Pty Ltd v Economacis & Economacis (Supreme Court) (proceeding 1).... 14
Slaveski & Sky Empire Pty Ltd v Economacis & Economacis (Supreme Court) (proceeding 2).... 17
Slaveski v Rotstein & Associates (Supreme Court) proceeding 3)................................................. 18
Slaveski v State of Victoria (Supreme Court) (proceeding 4)........................................................ 19
Slaveski v State of Victoria (Court of Appeal) (proceeding 5)...................................................... 23
Slaveski v State of Victoria (Supreme Court) (proceeding 6)........................................................ 25
Slaveski v Melbourne Magistrates’ Court (Supreme Court) (proceeding 7).................................. 25
Slaveski v Magistrates’ Court and Rotstein & Associates (Court of Appeal) (proceeding 8)........ 28
Slaveski v Rotstein & Associates Pty Ltd (Supreme Court) (proceeding 9)................................... 28
Slaveski v Rotstein & Associates (Court of Appeal) (proceeding 10)............................................ 32
Slaveski v State of Victoria (Court of Appeal) (proceeding 11).................................................... 32
Conclusion..................................................................................................................................... 35
Vexatious proceedings instituted ‘habitually’ and ‘persistently’................................................. 35
Proceedings otherwise relevant to the exercise of the Court’s discretion.................................. 35
Slaveski v State of Victoria (Supreme Court) (proceeding 12)...................................................... 35
R v Slaveski (contempt) (Supreme Court) (proceeding 13)........................................................... 38
Slaveski v R (Court of Appeal) (proceeding 14)........................................................................... 40
In the matter of an application by Lupco Slaveski for leave to issue a proceeding (High Court) (proceeding 15) 41
Slaveski v Rotstein & Associates (Federal Magistrates’ Court) (proceeding 16)........................... 41
Slaveski v Citygroup Pty Ltd (High Court) (proceeding 17)......................................................... 42
Lupco Slaveski v Paul Smith (High Court) (proceeding 18).......................................................... 43
Lupco Slaveski v The Queen (High Court) (proceeding 19).......................................................... 44
Conclusion.......................................................................................................................................... 45
HER HONOUR:
The Attorney-General for the State of Victoria seeks an order under s 21 of the Supreme Court Act 1986 (‘the Act’) declaring the defendant, Mr Lupco (sometimes referred to as ‘Ljupco’ or ‘Lupko’) Slaveski, to be a vexatious litigant. He also seeks an order that Mr Slaveski must not, without leave of the Court, continue or commence legal proceedings in Victorian courts or tribunals (within the meaning of s 21).
The hearing of the application
The proceeding was heard over seven sitting days. For the first five days, Mr Slaveski appeared without legal representation. He cross-examined Dr Adrian Hoel, the deponent of affidavits supporting the Attorney-General’s application. He gave evidence as well.
On 21 June 2013, the third day of the hearing, Mr Slaveski stated that he was unfit to continue the proceeding, asserting that he was suffering from mental illness.[1] The application was adjourned to allow him to obtain evidence from his treating psychiatrist as to his mental health and as to whether or not he should be regarded as being under a disability, for the purposes of r 15.01 of the Supreme Court (General Civil Procedure) Rules 2005 (‘the Rules’).
[1]Transcript of Proceedings, Attorney-General for the State of Victoria v Slaveski (Supreme Court of Victoria, S CI 2012 05803, Williams J, 21 June 2013) 234-235 (‘Transcript’).
Rule 15.03(3) provides for the appointment of a litigation guardian for a party who becomes a ‘handicapped person’, as defined in r 15.01, after the commencement of a proceeding. The relevant definitions are:
handicapped person means a person who is incapable by reason of injury, disease, senility, illness or physical or mental infirmity of managing his or her affairs in relation to the proceeding;
person under disability means minor or handicapped person.
The Attorney-General agreed to consent to the appointment of Mr Slaveski’s wife, Ms Snezana Angeleska (also known as ‘Ms Slaveska’), as his litigation guardian, should Mr Slaveski establish that he was a ‘handicapped person’ under r 15.03(3). Ms Slaveska had been present throughout and had helped Mr Slaveski with the preparation of his case. She had also been appointed as his litigation guardian in previous proceedings.[2]
[2]See for example Slaveski v Victoria [2010] VSC 441.
Mr Slaveski did not provide sufficient evidence as to his mental capacity by the adjourned date of 14 August 2013. There was a further adjournment to 2 September 2013. He was again directed to file and serve a report from his treating psychiatrist, having first shown the psychiatrist the Attorney-General’s written submissions to guide him as to the relevant issue. On 29 August 2013, Mr Slaveski filed a 22 August 2013 report of Dr Farnbach, his treating psychiatrist.
On 2 September 2013, whilst submitting that the report was insufficient to satisfy the Court that Mr Slaveski was a person under a disability, the Attorney-General indicated that he would not object to Ms Slaveska acting as Mr Slaveski’s ‘McKenzie friend’. However, at this point, Ms Slaveska declined that role.
Mr Slaveski then advised the Court that he wished to seek representation by Mr Leslie Glick of senior counsel. (The Attorney-General had previously recommended to Mr Slaveski on a number of occasions that he obtain legal representation, but he had refused to seek it.)
The matter was stood down to allow Mr Slaveski to make enquiries with the Victorian Bar’s Duty Barristers’ Scheme. But neither he nor anyone acting on his behalf appeared when the matter resumed at the appointed time on the same day. Ms Slaveska simply emailed the Court, advising that her husband would not return that day. The matter was adjourned until the next morning.
On the following day, Mr Slaveski appeared and informed the Court that Mr Glick had agreed to represent him. The matter was again adjourned, at his request, while an attempt was made to contact Mr Glick.
On 4 September 2013, Mr Glick appeared and indicated both his own willingness to represent Mr Slaveski under the Duty Barristers’ Scheme and Ms Slaveska’s willingness to act as Mr Slaveski’s litigation guardian for this proceeding, if the Attorney-General would undertake not to seek a costs order against her, absent exceptional circumstances. Mr Glick also indicated that (subject to permission from the Victorian Bar Ethics Committee and the Court). He was prepared to appear without an instructing solicitor, taking instruction directly from Ms Slaveska.
The Attorney-General gave the costs undertaking sought by Ms Slaveska. She was then appointed Mr Slaveski’s litigation guardian. I was persuaded that in the circumstances, it was appropriate to dispense with the requirement that she act through a solicitor under r 15.02(3) of the Rules. The hearing was then adjourned for some five weeks to 16 September 2013.
On 16 September 2013, with the permission of the Ethics Committee, Mr Glick appeared on behalf of Mr Slaveski without an instructing solicitor. Mr Slaveski was not present when the Court opened, and Ms Slaveska, through Mr Glick, sought to have the matter stood down for an hour to allow him to attend, on the basis that he was attending a driving licence test with his daughter. The matter was stood down.
When the hearing resumed, Mr Slaveski objected to the presence of security officers at the door of the Court. The security officers had been organised by the court in light of concerns raised by material from Mr Slaveski directed to the Court in the period leading up to the hearing. Mr Slaveski tried to close the Court door and the transcript recorded what followed:
HER HONOUR: Mr Slaveski.
MR SLAVESKI: Yes.
HER HONOUR: That door is remaining open during the proceeding.
MR SLAVESKI: What about the - - -
HER HONOUR: Would you be good enough to sit down. Take your seat behind Mr Glick, please.
MR SLAVESKI: Close the fuckin’ door, mate.
TIPSTAFF: No, sir.
MR SLAVESKI: Close the door, mate. Close the door, mate. Why are the guns here. What sort of - - -
HER HONOUR: Mr Slaveski, please sit down. Otherwise I’ll have to leave the bench. Sit down.
MR SLAVESKI: But what are you running? What are you running, guns here?
HER HONOUR: Just have a seat.
MR SLAVESKI: What sort of a fuckin’ court room is this, mate. What sort of justice?
HER HONOUR: Mr Slaveski, sit down, please, so we can continue with the proceeding.
MR SLAVESKI: Yeah, I can’t sit here. They’ve got guns there, mate.
HER HONOUR: Sit behind Mr Glick.
MR SLAVESKI: No, I’ll sit here so I can see the guns. I don’t trust these mother fuckers. They’ve got - - -
HER HONOUR: Mr Slaveski, that’s enough, thank you.
MR SLAVESKI: Your assistant threatened to shoot me.
HER HONOUR: That’s enough, Mr Slaveski. Sit around behind Mr Glick, please, in the place where we’ve arranged for you to sit. All right. I’ll leave the bench, Mr Slaveski. I want you to sit behind that – in that position behind Mr Glick and I will return when you are.[3]
[3]Transcript, 128-129.
A brief adjournment followed, during which there was an altercation between Mr Slaveski and court officers. Mr Slaveski and Ms Slaveska left the Court building during the adjournment. They indicated, via telephone, that they would not return. Ms Slaveska had dismissed Mr Glick as Mr Slaveski’s legal representative.
Mr Slaveski had been warned on a previous occasion of the possibility that the matter might continue in his absence if he chose not to attend.[4] Under all the circumstances, I was of the view that he and Ms Slaveska had had ample opportunity to defend the application and permitted it to continue in their absence.
[4]See Transcript, 107.
Mr Glick then provided valuable assistance to the Court as an amicus curiae, making submissions he indicated that he would have made on Mr Slaveski’s behalf, to give the Court the benefit of a contradictor.
Those are the circumstances in which this proceeding was heard. Mr Slaveski’s conduct during the hearing is relevant to the exercise of my discretion under s 21.
Section 21 of the Supreme Court Act 1986
Section 21 of the Act provides the basis for the order sought against Mr Slaveski and is relevantly in these terms:
Vexatious litigants
(1)The Attorney-General may apply to the Court for an order declaring a person to be a vexatious litigant.
(2)The Court may, after hearing or giving the person an opportunity to be heard, make an order declaring the person to be a vexatious litigant if it is satisfied that the person has—
(a) habitually; and
(b) persistently; and
(c) without any reasonable ground—
instituted vexatious legal proceedings (whether civil or criminal) in the Court, an inferior court or a tribunal against the same person or different persons.
(3)An order under subsection (2) may provide that the vexatious litigant must not without leave of—
(a) the Court; or
(b) an inferior court; or
(c)a tribunal constituted or presided over by a person who is an Australian lawyer—
do the following—
(d)continue any legal proceedings (whether civil or criminal) in the Court, inferior court or tribunal; or
(e)commence any legal proceedings (whether civil or criminal) in the Court or any specified inferior court or tribunal; or
(f)commence any specified type of legal proceedings (whether civil or criminal) in the Court or any specified inferior court or tribunal. …
The Court only has power to make an order in the exercise of its discretionary power under s 21 when satisfied that the matters specified in sub‑s (2) have been established.
In Attorney-General for the State of Victoria v Weston,[5] Whelan J considered relevant Victorian authority and cases in other Australian jurisdictions and New Zealand in an application under s 21. His Honour summarised the applicable legal principles in this way:
[5][2004] VSC 314 (‘Weston’).
(1)The application seeks a remedy of a most serious nature and a clear and compelling case must be shown to warrant it.
(2) The requirements of the section are that the person must have
• instituted proceedings
• which are vexatious
•and to have done so habitually and persistently and without reasonable cause.
If the requirements are met, the Court must then consider whether an order ought to be made.
(3)A proceeding is “instituted” where originating process is filed, and also where a person counterclaims, appeals against an otherwise final determination of the substantive matter, or applies to have an otherwise final determination set aside. Interlocutory applications and appeals on interlocutory applications do not ordinarily constitute the institution of proceedings.
(4)Vexatious proceedings are proceedings which have either been brought for an improper purpose, or which have been revealed to be hopeless. Hopelessness ought to be apparent from the ultimate disposition. A genuine claim, or element of a claim, may exist within a vexatious proceeding, where it is deeply buried in untenable claims and bizarre allegations.
(5)Vexatious proceedings are instituted “habitually” where they appear to be commenced as a matter of course. “Persistence” suggests determination and an element of stubbornness. An absence of reasonable grounds will necessarily be the position where the proceedings have been revealed to be hopeless.
(6)If the requirements of the section are met, the person’s conduct as a whole must be then assessed to determine if, in all the circumstances, an order ought to be made.[6]
[6]Ibid [23].
This summary should be amplified for the purposes of this application for relief against Mr Slaveski.
Instituting proceedings
Mr Slaveski argues that he did not institute many of the proceedings relied upon by the Attorney-General because he was responding to proceedings brought against him. I reject his argument that appeals and counter-claims do not constitute proceedings instituted by him upon which the Attorney-General can rely. He has provided no authority for such a proposition contradicting the law as stated in Weston.
Interlocutory applications
The Attorney-General relies upon an interlocutory application, proceeding 4, and an appeal from that interlocutory application, proceeding 5, as vexatious proceedings If the interlocutory application in substance is an attempt to appeal a final determination or to set aside either the decision itself or enforcement proceedings relating to it, the application amounts to the institution of proceedings.[7] Similarly, the making of an interlocutory application which seeks substantive relief, particularly if it seeks to bring an additional party or parties into the existing proceeding, may also be regarded as instituting a proceeding.[8] Each interlocutory proceeding relied upon here can properly be characterised as involving the commencement of a proceeding under s 21.
[7]Hunters Hill Municipal Council v Pedler [1976] 1 NSWLR 478, 488 (Yeldham J); Attorney-General for the State of Victoria v Horvath, Senior [2001] VSC 269, [18]-[23] (Ashley J); Weston [2004] VSC 314 [10]-[13] (Whelan J).
[8] Attorney-General v Wentworth (1988) 14 NSWLR 481, 492 (Roden J); Andrew Garrett Wines Resorts Pty Ltd v National Australia Bank Pty Ltd [2007] SASC 173, [84]-[85] (Anderson J); Garrett v Mildara Blass Ltd [2009] SASC 19, [122]-[124] (Layton J); Attorney General (NSW) v Klewer (No 3) (2010) 264 ALR 535, [18] (Harrison J); Bar-Mordecai v Attorney General (NSW) [2012] NSWCA 207, [37]-[39] (Basten JA; Beazley JA and Sackville AJA agreeing).
Vexatiousness
Whether a proceeding is ‘vexatious’ under s 21 is a question of fact.[9] The test is whether the proceedings themselves are vexatious, not whether they were instituted vexatiously.[10] It is not necessary for the judge or a defendant in a proceeding to have characterised the action as vexatious, as Mr Slaveski argues.
[9]Weston [2004] VSC 314, [14] (Whelan J).
[10]Ibid citing Re Vernazza [1960] 1 QB 197, 208 (Ormerod LJ).
The vexatious character of a proceeding is to be determined from the court file and not viva voce evidence; the Court should look at orders made and reasons given for making them and no re-examination of the relevant circumstances is required.[11]
[11]Kay v Attorney-General (2000) 2 VR 436, 437 [1] (Ormiston JA).
Mr Slaveski argues that he has succeeded in some litigation. To the extent that he asserts that his success in other cases is relevant and that the Attorney-General should not be entitled to rely only upon those in which he failed, his submission must be rejected.
Proceedings may be regarded as vexatious if they have been brought for the improper purpose of annoying or embarrassing the person against whom they are brought or if brought for a collateral purpose and not to have the court determine issues they raise.[12] They may also be regarded as vexatious where they are ‘so obviously untenable or manifestly groundless as to be utterly hopeless’, notwithstanding the motive of the litigant.[13]
[12]Attorney-General v Wentworth (1988) 14 NSWLR 481, 491 (Roden J).
[13]Ibid.
It has been held unanimously by the Western Australian Court of Appeal in Attorney-General v Michael[14] that a proceeding may not be utterly hopeless, in the sense of being untenable or groundless, and yet may be vexatious if the claims are bizarre, untenable and outlandish. Anderson J expressed the view of the court when he said:
The litigant who sees dark conspiracies and the threat of great harm to himself or herself in the trivial wrongs of another may provide an example. The commencement of an action by such a person, containing outlandish allegations and seeking forms of relief that the courts do not grant, may be vexatious, notwithstanding that it may be possible for the court to identify for the litigant a cause of action for which, arguably, there may be some form of remedy. In this case … [w]hilst it is not possible to say that the claim … is ‘utterly hopeless’, the allegations as to that, and the relief sought in respect of it, are so deeply buried in bizarre allegations and untenable claims for relief that the court ought to be able to say, as a matter of judgment, that it is a vexatious proceeding within the meaning of the section.[15]
[14][1999] WASCA 181 (‘Michael’).
[15]Ibid [126] (Pidgeon and Steytler JJ agreeing).
Whelan J agreed in Weston with this qualification to the requirement that to be vexatious, proceedings not brought for an improper motive must be utterly hopeless.[16]
[16][2004] VSC 314, [15].
Proceedings brought ‘habitually’ and ‘persistently’
Vexatious proceedings are instituted ‘habitually’ where they appear to be commenced as a matter of course under certain conditions.[17]
[17]Attorney-General v Wentworth (1988) 14 NSWLR 481, 492 (Roden J), cited in Weston [2004] VSC 314, [20] (Whelan J).
Vexatious proceedings are instituted ‘persistently’ when instituted with ‘determination, and continuing in the face of difficulty or opposition, with a degree of stubbornness’.[18] It is not necessary that the number of such proceedings be large.
[18]Ibid. See also Attorney-Generalfor the State of Victoria v Kay [1999] VSC 30, [164] (Eames J).
In Weston, Whelan J quotes this passage from the decision of the New Zealand Court of Appeal in Brogden v Attorney-General:[19]
A litigant may be said to be persisting in litigating though the number of separate proceedings he or she brings is quite small if those proceedings clearly represent an attempt to re-litigate an issue already conclusively determined against that person, particularly if this is accompanied by extravagant or scandalous allegations which the litigant has no prospect of substantiating or justifying. The Court may also take into account the development of a pattern of behaviour involving a failure to accept an inability in law to further challenge decisions in respect of which the appeal process has been exhausted, or attacking a range of defendants drawn into the widening circle of litigation solely because of an association with a defendant against whom a prior proceeding has failed.[20]
‘Without any reasonable ground’
[19][2001] NZAR 809.
[20]Ibid [21] (Thomas, Keith and Blanchard JJ), cited in Weston [2004] VSC 314, [21].
Whereas utterly hopeless proceedings will satisfy the s 21 requirement that they are the instituted without any reasonable ground, that requirement will need to be satisfied independently in the case of proceedings which are vexatious because they have been instituted for an improper purpose.
The Court’s discretion
Once satisfied that the requirements of s 21 have been made out, the Court must look to the person’s conduct as a whole to determine if, in all the circumstances, an order under s 21 ought to be made.[21] An order under s 21 interferes with a person’s basic right of access to the courts. It is a remedy that is extreme in its nature, with serious implications, and must be approached accordingly. The case of the Attorney-General must be ‘clear and compelling’ for the order to be made.[22]
[21] Attorney-General for the State of Victoria v Horvath, Senior [2001] VSC 269, [28] (Ashley J).
[22]Weston [2004] VSC 314, [7], citing Attorney-General v Wentworth (1988) 14 NSWLR 481, 484 (Roden J). Such a standard might well be characterised as that in Briginshaw v Briginshaw (1938) 60 CLR 336.
In Attorney-General (Vic) v Horvath, Senior, Ashley J considered that the exercise ought not involve ‘a minute individual examination of each proceeding … [but] the overall impression created by the number of proceedings, their general character and their results.’[23]
[23][2001] VSC 269, [28].
In Attorney General v Wentworth, Roden J noted that ‘the prima facie right of access to the courts enjoyed by all citizens, and the availability of other powers to deal with abuse of process, will be relevant considerations’ in deciding whether or not to make the order, but otherwise remarked that ‘[t]here is no fetter on the Court in considering all matters that bear upon the appropriateness of making the order sought.’[24]
[24](1988) 14 NSWLR 481, 493.
The Attorney-General’s material
The Attorney-General relies upon affidavits of Dr Adrian Hoel, solicitor, affirmed on 15 October 2012 and 27 February 2013, respectively. Dr Hoel’s affidavits exhibit various court documents and reasons for judgment in relation to the proceedings commenced by Mr Slaveski upon which the Attorney-General bases its application.
Mr Slaveski’s material
Mr Slaveski relies upon his affidavits, sworn on 13 February 2013 and 11 June 2013, respectively, although the 11 June 2013 affidavit was sworn in support of an adjournment application ultimately not made. Mr Slaveski nevertheless requested that the affidavit be before the Court in the defence of the application.
Mr Slaveski also relies upon an 8 October 2012 letter to him from the Department of Justice, and an audio and video recording of approximately ten seconds in length made by the Court’s recording service on 13 February 2012. Mr Slaveski relies on this as evidence of a threat to kill him by a Court officer.
As far as Mr Slaveski’s material responding generally to the application is concerned, it seems that he seeks to justify his institution of many of the proceedings on the basis of Victoria Police officers’ alleged mistreatment of him and his family and alleged conspiracies involving police, legal practitioners, various courts, court staff and judicial officers.
Throughout his submissions and affidavits in opposition to this application, Mr Slaveski expresses fears for his own safety and that of his family members. He also states his intention to continue to commence proceedings and lodge appeals. He foreshadows action against the Attorney-General, the Court and its employees and individual police officers, including a claim for $5 million against police by way of compensation for his alleged mistreatment.[25] Indeed, he exhibits a draft ‘counterclaim’ against the Attorney-General to his 10 June 2013 affidavit.[26] In that document, amongst other things, he claims $10 million compensation and general damages from the Attorney-General in addition to a declaration that the Attorney-General ‘be sacked’.
[25]Lupco Slaveski, ‘Submissions in Reply by Ljupco Slaveski’, Submission in Attorney-General for the State of Victoria v Slaveski, S CI 2012 02803, 10 April 2013, [6], [23], [34], [52] (‘Mr Slaveski’s written submissions’); Affidavit of Lupco Slaveski, 10 June 2013, [46] (‘Mr Slaveski’s June Affidavit’).
[26]Exhibit ‘SSL 1’ to Mr Slaveski’s June Affidavit.
Mr Slaveski submits that the Attorney-General seeks orders against him under s 21 of the Act in response to his complaint about the alleged threat to kill him by a Court officer. He contends that the Attorney-General’s application has been brought for the purpose of covering up threats and conspiracies and a vendetta against him.[27] He submits that the Attorney-General ‘sues’ every person who has sued the State or the police.[28] He argues that the Attorney-General is perverting the course of justice by bringing the application. He also alleges an associated conspiracy between the President of the Court of Appeal, the Chief Justice and the Attorney-General.
[27]Mr Slaveski’s written submissions [56].
[28]Ibid [32].
Mr Slaveski generally submits that, like others, he has the right to defend himself and to sue if he has a cause of action. He says that the Attorney-General should pay him reasonable compensation.[29]
[29]Ibid [61].
I will now turn to the specific proceedings upon which the Attorney-General relies.
The proceedings said to be vexatious
According to the Attorney-General, between July 2006 and December 2012 Mr Slaveski has commenced 11 vexatious proceedings and eight more proceedings otherwise relevant to the exercise of the Court’s discretion under s 21.
Of those proceedings said to be vexatious, Mr Glick submits generally that, if that characterisation were indeed deserved, it might be expected that the successful party would have sought indemnity costs. Suffice it to say that, whether or not this is the case, I do not regard the absence of orders for indemnity costs or reference to any relevant application decisive in relation to the issue as to the vexatious character of the proceedings.
I emphasise that it is the nature of the proceedings which is relevant to the issue as to their ‘vexatiousness’ and not Mr Slaveski’s conduct. I will examine each case individually, rather than as part of a sequence of proceedings, to determine whether it merits the description ‘vexatious’. The fact that a number of vexatious proceedings may have been pursued is, however, relevant to the exercise of the Court’s discretion under s 21.
Slaveski & Sky Empire Pty Ltd v Economacis & Economacis (Supreme Court) No 7586 of 2006 (proceeding 1)
On 19 July 2006, Mr Slaveski and his company, Sky Empire Pty Ltd, commenced proceeding 1 by originating motion against Mr Angelo Economacis and Mr Napoleon Economacis[30], seeking leave to appeal out of time from an order made in their favour on 5 September 2005 by the Victorian Civil and Administrative Tribunal (‘VCAT’). That application was ultimately refused by the Senior Master on 13 September 2006. I will refer to the background to proceeding 1 to put that decision in context.
Background
[30](Sometimes spelled ‘Economakis’).
On 5 September 2005, VCAT had ordered Mr Slaveski and Sky Empire to pay the sum of $8,702 to the Economacises within seven days (‘the VCAT order’). That payment had not been made. The VCAT order had been taken to be a judgment of the Magistrates’ Court of Victoria under s 121 of the Victorian Civil and Administrative Tribunal Act 1998 (‘VCAT Act’) after a certified copy of it had been filed there.
On 17 October 2005, Mr Slaveski had applied to the Magistrates’ Court for permission to pay the judgment debt by monthly instalments of $500. That application was granted on 24 October 2005. On 12 November 2005, the first instalment of $500 was paid under the instalment order. There had been a previous payment of $1,000.
On 5 December 2005, the Economacises had successfully applied to the Magistrates’ Court to have the instalment order set aside, having regard to Mr Slaveski’s earlier offer to pay $2,000 immediately, monthly instalments of $1,000 and a finally the sum of $1,702. The offer had been made in a 28 September 2005 letter headed ‘without prejudice’.
On 14 December 2005, Mr Slaveski had successfully sought leave to appeal under s 92 of the Magistrates’ Court Act 1989 from the 5 December order setting aside the instalment order. Mr Slaveski had alleged that the magistrate had erred in law, on the sole ground that his Honour should not have considered an offer made in a letter headed ‘without prejudice’.
On 21 June 2006, Hargrave J had dismissed the appeal. He had concluded that the ‘without prejudice’ letter was not privileged, not being a communication relating to settlement of any dispute when there was no appeal from the VCAT order filed in the Magistrates’ Court. Hargrave J had characterised the letter as a request for time to meet an existing obligation.[31] His Honour had found that Mr Slaveski had considered appealing from the VCAT order but had decided not to do so for reasons which were irrelevant.[32] Mr Slaveski and Mr Angelo Economacis had each appeared in person before Hargrave J and his Honour made no order as to costs as a result.[33]
[31] Slaveski v Economakis [2006] VSC 244, [16]-[17].
[32]Ibid [2].
[33]Ibid [18].
Mr Slaveski had only then commenced proceeding 1, seeking leave to appeal out of time against the VCAT order. Although the appeal was said to be one on a question of law, no relevant question of law was identified in the originating motion, the summons or Mr Slaveski’s 18 July 2006 affidavit in support of the application.[34]
[34]Exhibits ‘ATH-1’, ‘ATH-2’ and ‘ATH-3’respectively to the Affidavit of Dr Adrian Hoel, 15 October 2012 (‘Dr Hoel’s October affidavit’).
In his supporting affidavit, Mr Slaveski explained his decision to apply for the instalment order. He maintained that his solicitor had ‘instructed’ him to offer to pay the amount ordered by instalments, leading to his 28 September 2005 ‘without prejudice’ letter. He claimed to have applied for the instalment order after receiving no response to his offer to pay by instalments in that letter. He asserted that he had had no other option as the time for appeal had elapsed.
As to the VCAT order itself, Mr Slaveski also claimed to have been ill and to have been undergoing tests on the day of the VCAT hearing at which it was made. He stated that he had to ‘apply for a request for a review’. (It is not clear, but it seems that he may have been referring to the review process available under s 120 of the VCAT Act to a person who did not appear and was not represented at a hearing where an order was made). Mr Slaveski went on to say only that at ‘the hearing’, he had not been given a chance to explain himself or to present the evidence he now adduced by affidavit in the leave application.
He explained his ultimate application for leave to appeal against the VCAT order itself on the basis that he had had no choice but to try for the last time to appeal in order to have a hearing of his case. He also referred to having paid $1,500 of the $8,702 he had been ordered by VCAT to pay the Economacises.
On 13 September 2006, the application was heard by Senior Master Mahoney, who dismissed the proceeding, noting in ‘Other Matters’ that:
The plaintiff pursued the remedy of an instalment order with respect to the order of VCAT the subject of this proceeding, even to the extent of an appeal to this Court against a decision of a Magistrate with respect to an order for instalments. This was wholly inconsistent with any intention to pursue an appeal against the VCAT order. No basis for an extension of time within which to seek leave to appeal has, in these circumstances, been able to be shown.[35]
[35]‘ATH-5’ to Dr Hoel’s October Affidavit.
Once again Mr Slaveski and Mr Angelo Economacis appeared in person. There was no order as to costs.
The Attorney-General submits that this proceeding was hopeless and instituted without any reasonable ground. He says that, given Mr Slaveski’s own previous application for the instalment order, the Court should infer that the application for leave to appeal the VCAT order was brought with the intention of annoying the Economacises.
I am not persuaded that proceeding 1 was brought to annoy the Economacises, but I am persuaded that it was utterly hopeless and brought without any reasonable ground in all the circumstances. The Senior Master made the relevant point in ‘Other Matters’ by indicating the total inconsistency between his conduct in seeking an instalment order and subsequent appeal and his seeking of leave to prosecute an appeal. Further the Senior Master considered that no basis for extension of time had been shown.
I am not persuaded by Mr Glick’s submission that there is not enough material in the statement of ‘Other Matters’ in the order of the Senior Master to satisfy the Briginshaw standard of proof.
Mr Slaveski essentially argues in relation to proceeding 1 that he had the requisite reasonable grounds because, throughout, he was trying to defend himself from the Economacis claim. The decisive issue however is the different one as to whether the proceeding was hopeless in that there was no reasonable legal ground for it. I have concluded that this was the case.
Slaveski & Sky Empire Pty Ltd v Economacis & Economacis (Supreme Court) No 7586 of 2006 (proceeding 2)
On 18 September 2006, Mr Slaveski commenced proceeding 2 by a notice of appeal against the order of Senior Master Mahoney in proceeding 1.
The appeal was heard de novo by Morris J on 6 October 2006. On the same day, his Honour dismissed the appeal and ordered that Mr Slaveski pay Mr Angelo Economacis $100 in respect of the costs of his attendance at the hearing.[36] The order made by Morris J does not record his Honour’s reasons for dismissing the appeal.
[36]‘ATH-8’ to Dr Hoel’s October Affidavit.
The Attorney-General submits that, in the absence of evidence to the contrary, the Court should infer that the appeal failed for the same reasons as those given by Senior Master Mahoney at first instance. The Court should conclude that the proceeding was similarly hopeless and brought for the purpose of annoying the Economacises.
I am not persuaded that the proceeding was brought for the purpose of annoying the defendants. However, notwithstanding the absence of reasons for Morris J’s decision, I am again satisfied that the proceeding was utterly hopeless and instituted without any reasonable ground for the same reasons as those which relate to proceeding 1. There is no evidence of any fresh material being sought to be adduced and the application for leave to appeal from the VCAT order was inconsistent with Mr Slaveski’s seeking the instalment order and making payments under it.
I am not persuaded to a contrary conclusion by Mr Slaveski’s argument that his action was justified by his reasonable desire to defend the Economacis claim.
Slaveski v Rotstein & Associates (Supreme Court) No 6422 of 2008 (proceeding 3)
On 30 May 2008, Mr Slaveski commenced proceeding 3 by originating motion seeking judicial review of a costs order made in the Melbourne Magistrates’ Court on 1 April 2008.
Rotstein & Associates Pty Ltd (‘Rotstein’) had commenced proceeding number W02189172 against Mr Slaveski. Rotstein had previously acted as Mr Slaveski’s solicitors. In proceeding W02189172, they had sought payment of legal fees allegedly owed to them by him. The hearing took place over two days, 31 March and 1 April 2008.
Early on 31 March 2008, the first day of the hearing in the Magistrates’ Court, counsel for Rotstein pointed out that, before his appointment, the presiding magistrate had been a partner of another legal firm which had previously represented Mr Slaveski and of which Mr Slaveski had been critical. The learned magistrate asked Mr Slaveski whether he had any concerns about him hearing the case. Mr Slaveski said he had none. However, on 1 April 2008, the second day of the hearing, Mr Slaveski asked that the magistrate disqualify himself on grounds of his prior association with the firm.
The magistrate acceded to the application and the matter was adjourned to another magistrate on another day. Rotstein then sought costs in respect of the two days of the hearing on the basis that the objection should have been raised at the outset. The magistrate ordered Mr Slaveski to pay costs of $7,115.90 to Rotstein (‘the costs order’).
In proceeding 3, Mr Slaveski sought judicial review on grounds that the making of the costs order had been affected by actual or apprehended bias. On 3 April 2009, Smith J dismissed the application, concluding as follows:
I am satisfied that nothing had occurred that should have given any independent reasonable observer any concern about real or apprehended bias on the part of his Honour. There was no denial of natural justice.
As events unfolded, all the relevant decisions of the learned Magistrate, including the costs order, were reasonably open to him. Mr Slaveski has been unable to demonstrate any error on the part of the learned Magistrate in this matter. The application should therefore be dismissed.[37]
[37]Slaveski v Rotstein & Associates Pty Ltd [2009] VSC 111, [19]-[20].
The Attorney-General submits proceeding 3 was hopeless and instituted without any reasonable ground.
I do not agree. I am persuaded by Mr Glick’s submission that Mr Slaveski’s application should not be characterised as utterly hopeless, given that the learned magistrate had in fact excluded himself before making the order. There was a reasonable basis for mounting the challenge, notwithstanding that Smith J did not find any actual or apprehended bias.
Slaveski v State of Victoria (Supreme Court) Interlocutory application in No 8519 of 2006 (proceeding 4)
On 5 September 2006, Mr Slaveski commenced proceeding number 8519 of 2009, Slaveski v Victoria against the State of Victoria and, ultimately, 23 present and former members of Victoria Police (this will be described as ‘proceeding 12’). He sought over $2 million in damages in relation to various causes of action, including assault and battery, false imprisonment, trespass, defamation, malicious prosecution, conversion, detinue and negligence. The claims arose out of 13 alleged incidents, said to have occurred between 9 September 2000 and 7 May 2007. The Attorney-General does not say that proceeding 12 was vexatious, but does rely upon it as relevant to the exercise of the Court’s discretion and I will return to it.[38]
[38]See paragraph [158] below.
On 26 September 2008, in the course of proceeding 12, Mr Slaveski is said to have commenced another vexatious proceeding, proceeding 4, against the State of Victoria, 19 Victoria Police officer defendants and a non-party, Senior Constable Bateman, by a summons seeking injunctive orders preventing them from stalking, assaulting, harassing, threatening, intimidating, telephoning, approaching or causing another to engage in offensive behaviour towards him or his children.[39] Mr Slaveski additionally sought an order compelling the Chief Commissioner of Police (also a non-party to proceeding 12) to give protection to him and his children and to grant him a firearm licence under the Firearms Act 1996 for the purposes of him defending himself and his children from the alleged behaviour.
[39]The summons was not exhibited to any affidavit filed in this proceeding, but the orders sought in the summons are reproduced in the reasons for judgment of the Court of Appeal in Slaveski v State of Victoria [2009] VSCA 6, [15] (Kellam JA) (Dodds-Streeton JA agreeing).
The summons commencing proceeding 4 was supported by an affidavit sworn by Mr Slaveski on 3 October 2008. In it, he described 12 alleged incidents of threats or harassment alleged to have taken place between 5 September 2007 and 23 September 2008. He described all of these incidents as equally serious.
On 8 October 2008, Harper J refused the application.[40] His Honour first held that the Court did not have the power to grant the orders sought by Mr Slaveski in relation to the Chief Commissioner or Mr Bateman, who was not a party to proceeding 12.
[40]See Slaveski v State of Victoria [2008] VSC 434.
Harper J then found that, of the 12 incidents relied upon, only three involving alleged threats to kill could be characterised as serious.
The first complaint was of Constable Bateman being concerned about an improperly adjusted seatbelt.His Honour said that this complained was ‘not as serious as a policeman threatening to kill’ and that ‘the level of seriousness of the one is so far below that of the other that they are not really comparable.’ [41] Harper J noted that all the alleged incidents were nevertheless characterised as serious by Mr Slaveski.
[41]Ibid [9].
The second complaint was of an alleged threat to kill made by an unidentified caller to one of Mr Slaveski’s children. Mr Slaveski did not hear the threat, but he did hear the same caller breathing deeply after taking the phone. Harper J pointed out that the evidence of the threat would involve inadmissible hearsay and that the alleged heavy breathing did not amount to a threat to kill.
The third allegation was that an unidentified man in a Nissan Maxima vehicle told Mr Slaveski to leave his dogs at home and stated that he would ‘fix up’ Mr Slaveski. The unidentified man then allegedly said that he would ‘be back to finish [Mr Slaveski] off’. Harper J found no evidence linking him to any defendant in proceeding 12.
The fourth alleged incident involved a police car blocking Mr Slaveski and his children at a school crossing and the police officers laughing at Mr Slaveski.
The fifth incident allegedly occurred at a shopping centre where Mr Slaveski, his mother and wife were having coffee. Two unidentified men looked at them. Mr Slaveski recognised one as a serving police officer at Epping. The second man was not known. The men left their half-eaten breakfasts and walked towards Mr Slaveski, scaring him. They followed the Slaveski party to Coles but walked away when a mobile phone was used.
The sixth alleged incident involved a gun threat. Mr Slaveski claimed that a police officer had ‘started to pull a metal object [a gun] from one of his side leg pockets and started to point it towards me’. The nominated police officer was not a defendant and was accompanied by an otherwise unidentified female police officer. Mr Slaveski then essentially complained that the police had failed to respond as quickly as they might to a ‘000 call’ after the production of the gun.
The seventh alleged incident involved police officers who were near Mr Slaveski at some stage in the vicinity of the County Court. One may have been the man sighted in a Nissan Maxima some eight or so months beforehand. Five policemen were somewhere near Mr Slaveski at some stage. Harper J said that there were no details as to what the policemen were said to have done.
The eighth alleged incident involved allegations that a Protective Services Officer rudely gestured to Mr Slaveski, sang ‘Dreaming of a White Christmas’ and told Mrs Slaveska to ‘shut up’ and to go to court, when she asked why he was following members of her family.
The ninth alleged incident involved a threat in a number of calls during which there was swearing, references to an offer of $250,000 and to fake passports and Mr Slaveski was being told to give his business or have his own and his children’s throats sliced.
The tenth alleged incident was constituted by plain clothes police officers parking outside the Supreme Court, one calling Mr Slaveski a stupid, small man and them behaving rudely and inappropriately before driving off, sounding the car horn.
The eleventh alleged incident involved threatening and prank phone calls.
The twelfth and final allegation was one Harper J found difficult to follow. It involved Constable Bateman at the Heidelberg Magistrates’ Court playing an incorrect CD, stating that he would provide Mr Slaveski with another copy and would stick it to his fence with sticky tape and being told that he was not wanted near the house and should post the CD. It also involved Mr Bateman replying, ‘I have six bullets in my gun for you’.
Ultimately, Harper J concluded that on the evidence none of the 19 defendants were directly involved in any of the alleged incidents. His Honour took the view that if Mr Slaveski were seriously concerned about threats he should complain to the Ethical Standards Department of Victoria Police. He concluded that there was simply not sufficient evidence against any of the individual defendants to warrant the injunctive orders sought. Further, it was not open to the Court to grant the relief sought against the non-party, Mr Bateman.
The Attorney-General submits that proceeding 4 was hopeless and instituted without any reasonable ground. Mr Glick argues that the Court should not reach this conclusion; he acknowledges the Court’s limited powers but refers to Harper J’s sympathy for Mr Slaveski’s concerns.
Although proceeding 4 was an interlocutory application in proceeding 12, it can be regarded as a proceeding instituted by Mr Slaveski for the purposes of s 21 as it was brought against non-parties. Both claims against the non-parties were also untenable for that very reason. Harper J also held that the Court had no relevant powers to order the Chief Commissioner of Police to provide protection or to grant a firearms licence to Mr Slaveski.
The interlocutory application also sought to rely upon events which were not the subject of proceeding 12. To that extent, it might also be regarded as a proceeding instituted by Mr Slaveski against the existing defendants for the purposes of s 21. It was hopeless because Mr Slaveski adduced no evidence linking the alleged incidents to the defendants. In many cases, too, Harper J found the alleged incidents too trivial to constitute the basis for the type of relief sought.
I agree with the Attorney-General that proceeding 4 should be regarded as utterly hopeless and brought without any reasonable ground. That is so, notwithstanding Mr Slaveski’s complaints about his alleged police mistreatment, any fear he might have entertained about his own safety or that of his family and his perception that the application ultimately had had the effect of reducing the threat to them all.
Slaveski v State of Victoria (Court of Appeal) No 3872 of 2008 (proceeding 5)
On 22 October 2008, Mr Slaveski commenced proceeding 5 seeking leave to appeal out-of-time from the judgment of Harper J in proceeding 4. This proceeding may be regarded as one instituted for the purposes of s 21 because, as the Attorney-General submits, it is an application which is the necessary first step in the process of challenging the final order of the Court in proceeding 4.
Mr Slaveski claimed to have been denied natural justice and a breach of his rights under the Charterof Human Rights and Responsibilities Act 2006 (‘the Charter’) and the Equal Opportunities Act 1995. He alleged ‘partial bias’ on the part of Harper J and his Honour’s failure to exercise the Court’s powers under the Constitution Act 1975, Administrative Law Act 1978, and Crimes Act 1958.
On 10 February 2009, the Court of Appeal refused Mr Slaveski leave to appeal.[42] Kellam JA (with whom Dodds-Streeton JA agreed) referred to his proposed ground of appeal 1 as having ‘no basis’[43], proposed ground 2 as ‘objectively hopeless’[44] and proposed ground 4 as having no substance.[45] His Honour said that the Court lacked the requisite jurisdiction required for proposed ground 3 and also that an application to rely upon proposed ground 5 was futile.[46] Kellam JA concluded that there was ‘no evidentiary basis’ for an application for an injunction in relation to proposed ground 6[47] and no basis for proposed ground 7.[48]
[42]Slaveski v State of Victoria [2009] VSCA 6.
[43]Ibid [37].
[44]Ibid [46].
[45]Ibid [54].
[46]Ibid [57].
[47]Ibid [58].
[48]Ibid [75].
In summary, his Honour said this:
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. This is such a case. [Footnote omitted.][49]
[49]Ibid [77], citing Jackamarra v Krakouer (1998) 195 CLR 516, 521 [7] (Brennan CJ and McHugh J) (Kirby J agreeing).
I agree with the Attorney-General that proceeding 5 was hopeless and instituted without any reasonable ground.
I am not dissuaded from this view by Mr Slaveski’s references to his alleged fears for his life as justification for this proceeding and proceeding 6[50] to which I will now turn.
Slaveski v State of Victoria (Supreme Court) No 8351 of 2009 (proceeding 6)
[50]Mr Slaveski’s written submissions [43(d)].
On 31 July 2009, Mr Slaveski commenced proceeding 6, by a generally indorsed writ. On 14 February 2011 and 8 April 2011, respectively, he filed statements of claim in relation to incidents alleged to have occurred between 2000 and 2008. The initial 13 defendants ultimately became 19. The writ remained unserved during the year following its issue. On 30 July 2010, Mr Slaveski issued a summons seeking the extension of the period of its validity.
On 19 May 2011, Zammit AsJ dismissed the application.[51] Her Honour held that Mr Slaveski had not shown good reason for extending the period of validity of the writ. He had unsuccessfully sought to rely upon a number of matters, including his own involvement in the trial in proceeding 12 before Kyrou J. Zammit AsJ ultimately concluded that Mr Slaveski was awaiting the outcome of proceeding 12 before serving the writ, referring to Protec Pacific Pty Ltd v Steuler Industriewerke GmbH,[52] where it was held that ordinarily such an intention will not justify the failure to serve.
[51]Slaveski v State of Victoria [2011] VSC 201.
[52][2007] VSC 93, [37] (Hansen J).
Despite the failure of his application and the absence of evidence explaining why Mr Slaveski had not served the writ in the year after its issue, on balance, I am not satisfied that proceeding 6 should be regarded as absolutely hopeless or otherwise vexatious for the purposes of the application under s 21 of the Act.
Slaveski v Melbourne Magistrates’ Court (Supreme Court) No 3776 of 2011 (proceeding 7)
On 20 July 2011, Mr Slaveski commenced proceeding 7 by originating motion naming ‘Melbourne Magistrates’ Court’ and Rotstein as defendants. It related to the hearing of Rotstein’s claim for costs against Mr Slaveski in Magistrates’ Court proceeding number WO 2189172 (the costs order made after the presiding magistrate had disqualified himself was the subject of proceeding 3.)
Rotstein’s claim was scheduled to be heard on 25 July 2011 by Magistrate Lauritsen. Mr Slaveski alleged that his Honour and several other magistrates were affected by bias, and that there was a conspiracy against him in the Melbourne Magistrates’ Court. He sought an injunction restraining that Magistrates’ Court, Magistrates Garnett and Lauritsen and any other magistrate who had worked for David Reichenberg of Gadens or Rotstein from hearing the matter. He sought an adjournment of the proceeding to a different magistrate or court.
Macaulay J stated the background facts. Both Rotstein and another firm, of which Mr Garnett (who later became a magistrate) had been a member, had acted for Mr Slaveski at one time or another in his litigation against the Commonwealth Bank of Australia in this Court. Mr Rotstein of Rotstein had allegedly failed to return to Mr Slaveski client invoices for 20 prestige cars which he had taken for photocopying at a mediation. Mr Slaveski claimed that the loss of the documents prejudiced his case against the bank. He alleged that Mr Rotstein had conspired with Mr David Reichenberg, the bank’s solicitor.
Magistrate Garnett had subsequently disqualified himself from hearing the dispute between Mr Slaveski and Rotstein, on the grounds of his involvement with Mr Slaveski’s former solicitors. Rotstein had subsequently sued Mr Slaveski for the costs ordered by Magistrate Garnett after he had disqualified himself. Mr Slaveski had alleged that Mr Rotstein knew Mr Walsh, the Registrar at the Melbourne Magistrates’ Court. He alleged that he had been unfairly treated by various decisions of the court in relation to the Rotstein matter. He believed that there was a conspiracy against him between people at the court, involving Registrar Walsh and some magistrates and Mr Rotstein; he argued that his case would not be heard fairly.
The case had had some 14 trial dates and had been adjourned to a date shortly after the hearing of the application before Macaulay J. When Magistrate Lauritsen had adjourned the matter, for hearing before himself, Mr Slaveski had made no application that he disqualify himself and, indeed, had thanked his Honour who had said ‘see you in July’ at the end of the adjournment hearing.
Mr Slaveski’s first ground for relief was the allegation that Mr Walsh, who was involved in a conspiracy with Rotstein, had caused the file to be before Magistrate Lauritsen and that fair minded lay observer might reasonably conclude that Magistrate Lauritsen would not bring an impartial mind to the matter. Macaulay J rejected this argument.
His Honour also rejected Mr Slaveski’s argument to the effect that the magistrate had shown bias in the adjournment hearing by regularising the late filing of a defence to his counterclaim. He noted that Mr Slaveski had neither opposed the making of the relevant order nor applied for the learned magistrate to disqualify himself.
Macaulay J stated that Mr Slaveski would have to rely upon something more than Mr Walsh being the Registrar at the Melbourne Court as a basis for an order effectively preventing a magistrate at that court from hearing the claim. (His Honour noted that Magistrate Garnett had disqualified himself from hearing any cases involving Mr Slaveski.)
The Attorney-General describes the allegations made by Mr Slaveski in proceeding 7 as ‘extreme’ and unsubstantiated by any evidence, with no proper basis. He submits that the proceeding was utterly hopeless and instituted without any reasonable ground. I agree.
I am not persuaded to the contrary either by Mr Slaveski’s repetition of his allegation that the magistrate who heard proceeding 3 was biased or by Mr Glick’s argument that costs had been awarded only on the usual basis in favour of Rotstein. Nor am I persuaded by Mr Slaveski’s argument that the proceeding should not be regarded as vexatious because he was defending himself in the context of a conspiracy involving the Magistrates’ Court and Rotstein.
Slaveski v Magistrates’ Court and Rotstein & Associates (Court of Appeal) S APC1 0116 of 2011 (proceeding 8)
On 4 August 2011, Mr Slaveski commenced proceeding 8 by a notice of appeal from the orders made by Macaulay J in proceeding 7. The notice of appeal purports to raise a question of law, but no relevant question of law is identified. The grounds of appeal are stated as follows:
“Questions of Law:”
The Judge made an error of law in interpreting/the facts that were on the CD – WO2189172 – “Audio CD” that was recorded on 25-1-2011. & After hearing the Audio CD noticed that the “CD” provided by the Magistrate’s [sic] Court had been tampered with. Further grounds will be … [unclear].
This appeal has not yet been heard.
The Attorney-General submits that, having regard to the reasons for judgment of Macaulay J and the notice of appeal filed by Mr Slaveski, it is open to the Court to find that proceeding 8 is vexatious and was instituted without any reasonable ground.
I consider such a conclusion premature. The situation may alter before the appeal is concluded.
Slaveski v Rotstein & Associates Pty Ltd(Supreme Court) No 4500 of 2011 (proceeding 9)
On 25 July 2011 Magistrate Lauritsen ordered Mr Slaveski to pay $100,000 to Rotstein & Associates for costs in respect of his claim against the Commonwealth Bank of Australia. The learned magistrate also dismissed Mr Slaveski’s counterclaim.
On 19 August 2011, by a notice of appeal in proceeding 9, Mr Slaveski appealed to the Court against the decision. The appeal was heard on 17 September 2012 and dismissed by Dixon J on 26 September 2012.
In the meantime, on 23 September 2011, Mr Slaveski had filed a summons in the Court seeking a stay of the magistrate’s orders. On 14 November 2011, Daly AsJ summarily dismissed the application. Mr Slaveski had appealed from the order of Daly AsJ to the Practice Court, but had not appeared to prosecute the appeal. On 3 September 2012, Kaye J had dismissed it with costs.
By a summons filed on 12 September 2012, Mr Slaveski had sought to have Kaye J’s order set aside. On the return date of 17 September 2012, Mr Slaveski failed to appear before Dixon J. Ms Slaveska explained his absence on the basis that he was in Thailand seeking medical treatment. It was also said that the expiration of time under a bankruptcy notice on 19 September 2012 had ‘created circumstances of urgency’. Dixon J gave her limited leave to make submissions in the application.
Ms Slaveska sought to have Dixon J disqualify himself on the ground of apprehended bias, for the primary reason that his Honour’s superannuation fund held shares in the Commonwealth Bank of Australia. His Honour rejected that application on the grounds that the outcome of the case could not affect the Commonwealth Bank.[53]
[53]Slaveski v Rotstein & Associates Pty Ltd [2012] VSC 435, [12].
Despite having some reservations, Dixon J ultimately accepted the explanation for Mr Slaveski’s absence before Kaye J, namely, that he had been told by police not to attend the Court. Dixon J was influenced particularly by Mr Slaveski not being legally represented before him.[54]
[54]Ibid [23].
His Honour described Ms Slaveska’s allegations of conspiracy between the Commonwealth Bank and or its former solicitors, Gadens Lawyers and or Rotstein & Associates as scurrilous and unsupported by evidence.[55]
[55]Ibid [13].
Dixon J also rejected, as untenable, the proposition that Magistrate Lauritsen had adopted an unfair procedure by continuing the hearing after Mr Slaveski had left the court, claiming not to feel safe and that he was unwell.[56] His Honour had listened to the audio recording of the Magistrates’ Court proceeding. He noted that it was immediately after hearing the reasons for the magistrate’s refusal to disqualify himself that Mr Slaveski had demanded that security guards leave the court, claiming that he was being ‘eyed by them and [feeling] threatened’. When he said that he would leave, Magistrate Lauritsen had warned him that the hearing would continue in his absence.
[56]Ibid [30].
In his judgment, Dixon J recorded Mr Slaveski’s own account of events as provided in his 19 August 2011 affidavit:
I left the courtroom because the magistrates called two Victoria Pro/police … and they were standing behind me with their guns, and the third one was outside the court, this is because I asked the magistrate to disqualify himself. I asked and requested to the magistrate to get the two Victoria pro/police officers to sit either on the corner of the courtroom, or outside the courtroom where the third one was or to get security with no guns as I am scared to stay near police with guns in their possession, and I have sued the State of Victoria and 23 police members and have been threatened to get killed/shot on numerous occasions … Also the reason I am scared is because I suffer from post traumatic [sic] stress disorder, anxiety and panic disorder, and have been threatened to be shot by police officers on few occasions and that is why I am suing police officers in the Supreme Court, and I feel nervous when I see them or especially when they stand behind me with their guns. After magistrate Lauristen [sic] rejected and ignored my requests on many occasions, I further requested to the magistrate to allow my wife to take over the case instead of me but he still refused, so I was feeling very dizzy. I took my tablets, to [calm] down, but I was still scared, I was talking and instead of looking at the magistrate, I was talking had my back to the magistrate, and I was looking at the two Victoria pro/police officers, and started to have palpitations on my heart and left the court and told him the magistrate to let my wife take over instead of me, and that I was going to the Supreme Court to complain, which I did …[57]
[57]Ibid [29].
Having compared the transcript of the hearing with Mr Slaveski’s account, Dixon J concluded that the comparison did not assist Mr Slaveski’s position. His Honour noted the presence of some agitation but concluded that Mr Slaveski was aggressive and apparently in control of himself and did not sound scared, fearful or panicky, as he claimed to be.
His Honour rejected the proposition that the presence of armed security officers in the court had restricted Mr Slaveski’s capacity to present his arguments and evidence.[58] He considered that Daly AsJ had appropriately described Mr Slaveski as having been ‘lucid and focussed’.[59] He had left the hearing voluntarily, understanding that the case would proceed and had done so ‘for his own tactical reasons’.[60] Dixon J went on to say:
The proper course for Mr Slaveski to have adopted would have been to complete the hearing. If his defence had ultimately failed he could have then considered his position. That the proceeding continued in Mr Slaveski’s absence was entirely the result of his petulant display towards the magistrate’s rulings. I am satisfied that for these reasons neither the first nor the second ground of appeal upon which Mr Slaveski seeks to proceed is tenable.
[58]Ibid [34].
[59]Ibid [28].
[60]Ibid [35].
His Honour concluded, too, that Mr Slaveski had been given every encouragement to prosecute his counterclaim if prepared to limit it to the jurisdiction of the Magistrates’ Court.[61]
[61]Ibid [38].
Dixon J characterised the appeal from Daly AsJ as not tenable and without real prospect of success.[62] He refused the application to set aside the order of Kaye J dismissing the appeal, noting that doing so would be ‘futile’. His Honour could find ’no basis to conclude that it [was] not in the interests of justice to summarily dismiss [the] appeal.’[63]
[62]Ibid [36], [39].
[63]Ibid [39].
The Attorney-General submits that, having regard to the observations of Dixon J, proceeding 9 was hopeless and instituted without any reasonable ground. I agree.
Once again, I am not persuaded to a different view by Mr Slaveski’s references to bias on the part of the Court and a conspiracy involving the Court and Rotstein.
Slaveski v Rotstein & Associates (Court of Appeal) S APCI 0190 of 2012 (proceeding 10)
On 2 October 2012, Mr Slaveski commenced proceeding 10, an application for leave to appeal from the judgment of Dixon J in proceeding 9.
Mr Slaveski did not appear at the hearing of the application. Two members of counsel initially represented him on a pro bono basis. However, due to their concern about their instructions to put certain matters to the Court of Appeal, they regarded themselves as no longer acting with Mr Slaveski’s authority.
The first proposed ground of appeal was that Dixon J ought to have disqualified himself because there was a reasonable apprehension of him being biased. The second, that his Honour had erred in finding that Magistrate Lauritsen had not denied Mr Slaveski procedural fairness by continuing the hearing in his absence.
The Court of Appeal rejected the apprehended bias ground for the reasons given by Dixon J.[64] It also described the proposed second ground of appeal as ‘not reasonably arguable’.[65]
[64]Slaveski v Rotstein & Associates Pty Ltd [2012] VSCA 291, [20].
[65]Ibid [30].
The Attorney-General submits that, having regard to the observations of the Court of Appeal, proceeding 10 was hopeless and instituted without any reasonable ground. I agree.
I note that, in reaching this conclusion, I have taken into account Mr Slaveski’s submissions relating to bias and conspiracy, to which I have previously referred in relation to other proceedings involving Rotstein. I have borne in mind, too, that, as Mr Glick points out, proceedings 3, 7, 8, 9 and 10 might all be said have arisen by way of Mr Slaveski’s reaction to being sued by Rotstein. This does not dissuade me from my view that each of proceedings 7, 9 and 10 was vexatious.
Slaveski v State of Victoria (Court of Appeal) S APCI 0169 of 2010 (proceeding 11)
Proceeding 11 was an appeal by Mr Slaveski, by his litigation guardian, Ms Slaveska, from Kyrou J’s final orders (including the order for costs) in proceeding 12. There were 36 grounds of appeal stated in the notice of appeal.
On 25 November 2011, Nettle and Harper JJA stayed the appeal pending payment of security for costs by Ms Slaveska by 25 December 2011. Ms Slaveska did not comply with the Court of Appeal’s order for security.
On about 5 July 2012, however, Mr Slaveski sent anonymous bank cheques to five judges and the Chief Executive Officer of the Court of Appeal. That Mr Slaveski was the sender of the cheques was determined by police investigation, and confirmed in his own letter to the Court dated 30 November 2012.[66] The Court forwarded the cheques to Victoria Police.[67]
[66]See Slaveski v State of Victoria (unreported, Victorian Court of Appeal, Neave JA and Vickery AJA, 1 February 2013) [10]-[11].
[67]Ibid [21].
Having forewarned Ms Slaveska by letter dated 29 November 2012, the Judicial Registrar of the Court of Appeal referred the appeal to the Court of Appeal for dismissal, in light of her non-compliance with the security order.
On 1 February 2012, Neave JA and Vickery AJA dismissed the appeal for want of prosecution and ordered Ms Slaveska to pay the respondents’ costs. Their Honours considered that the conduct of the Slaveskis demonstrated their ‘obvious incapacity’ to comply with orders of the Court.[68] The Court of Appeal also stated that Mr Slaveski’s conduct in sending the bank cheques was ‘nothing less than bizarre’ and went on to say that ‘the step was not only deliberate and calculated, but also lacked bona fides and was contumelious’.[69]
[68]Ibid.
[69]Ibid [20].
Their Honours described the statement of the 36 grounds of appeal as ‘convoluted’ and as containing ‘much irrelevant material’. They went on to say on the basis of the stated grounds that Mr Slaveski’s prospects of success on appeal appeared ‘very poor’.[70] Further, they took the view that his conduct had engaged ‘valuable public resources’ and said that:
Addressing the issues in this application has in itself had deleterious effects, not only upon the respondents to the appeal, but to other litigants, by unnecessarily diverting the resources of the Court to determine matters which should never have arisen … The time has come to put an end to this litigation.[71]
[70]Ibid [18].
[71]Ibid [23].
The Attorney-General submits that these observations by the Court of Appeal show that proceeding 11 was hopeless and instituted without any reasonable ground. I agree.
Mr Slaveski argues he should not be regarded as having instituted proceeding 11 as he had not made decisions in relation to it and was overseas when his wife and litigation guardian instituted the appeal.
The Attorney-General argues that Ms Slaveska was essentially guided by her husband in the conduct of the proceeding when acting as his litigation guardian and that, although the proceeding was formally brought by Ms Slaveska, it was effectively instituted by Mr Slaveski. I agree.
As the Attorney-General points out:
(a)Mr Slaveski brought the principal proceeding and conducted it himself until his litigation guardian was appointed;
(b) he sent the cheques to the judges;[72]
(c)he had direct email contact with Court officials in relation to the proceeding;[73] and
(d) he purported to ‘sack’ Ms Slaveska as his litigation guardian.[74]
Further, it was Mr Slaveski’s conduct which was criticised by the Court of Appeal, notwithstanding the role of his wife.
[72]See ibid [10].
[73]See ibid [11].
[74]See ibid [12].
Conclusion
I am satisfied that proceedings 1, 2, 4, 5, 7, 9, 10 and 11 are properly characterised as vexatious. Proceedings 3, 6 and 8 are not.
Vexatious proceedings instituted ‘habitually’ and ‘persistently’
I am also satisfied that, as the Attorney-General submits, Mr Slaveski demonstrated a pattern of behaviour in which he has instituted vexatious proceedings as a matter of course to appeal against or otherwise challenge adverse decisions, irrespective of the merits of any appeal or challenge. That is the case, even though the number of vexatious proceedings may not be considered large. Mr Slaveski has also repeatedly made extravagant and scandalous allegations, including allegations of conspiracy which he has had no prospect of making out.[75]
[75]See Brogden v Attorney-General [2001] NZAR 809, [21] (Thomas, Keith and Blanchard JJ).
I am satisfied that he has ‘habitually’ and ‘persistently’ instituted vexatious proceedings within the meaning of s 21 of the Act.
Proceedings otherwise relevant to the exercise of the Court’s discretion
Along with Mr Slaveski’s conduct in the 11 proceedings described above, the Attorney-General relies on conduct in seven additional matters as relevant to the exercise of the Court’s discretion in deciding whether orders under s 21 should be made. He argues that they involved vexatious or inappropriate conduct on Mr Slaveski’s part, although they are not alleged to be vexatious proceedings in themselves.
Three of the proceedings were instituted in the High Court and one in the Federal Magistrates’ Court. The Court may have regard to the institution of proceedings in other courts.
Slaveski v State of Victoria (Supreme Court) No 8519 of 2006 (proceeding 12)
Proceeding 12 was commenced in the Court on 5 September 2006. It had a protracted interlocutory history. The trial before Kyrou J, which had an estimated duration of six weeks, began on 3 August 2009 and ultimately lasted 115 hearing days. During proceeding 12, Mr Slaveski’s behaviour led his Honour to adjourn the hearing of the matter on several occasions.
On 24 September 2009, Kyrou J published reasons for his decision to adjourn the 22 day old hearing for some months to allow Mr Slaveski to submit to an independent psychiatric assessment. His Honour’s reasons described numerous instances of Mr Slaveski’s inappropriate behaviour during the trial. He also noted that:
there were many occasions during the hearing where [Mr Slaveski] was courteous, co-operative and focused … These peaceful and productive periods, however, were overshadowed by Mr Slaveski’s inappropriate behaviour when he lost his self-control.[76]
[76]Slaveski v Victoria [2009] VSC 429, [35].
Kyrou J cited 10 hearing days upon which Mr Slaveski had behaved inappropriately, with relevant transcript excerpts. The behaviour included discourteous, threatening or argumentative conduct towards his Honour, the two witnesses he had so far called and counsel for the State of Victoria.[77] When Kyrou J made rulings that Mr Slaveski perceived to be against his interests, Mr Slaveski had commented that his Honour’s views were ‘criminal’ and had ‘put everybody on notice that the police and the State has [sic] poisoned your brain.’[78] During an outburst on 1 September 2009, Mr Slaveski had stormed out of the court room, shouting, and had kicked the court room wall.[79] On 7 September 2009, Mr Slaveski had told his Honour to ‘get lost’ and said that his Honour was corrupted, and had later made an application that Kyrou J disqualify himself on grounds that his Honour was biased, for reasons including his Honour’s Greek background. [80]
[77]See ibid [38]-[57] (Kyrou J).
[78]Ibid [44]-[45].
[79]Ibid [47].
[80]Ibid [51].
Kyrou J said that on 8 September 2009, Mr Slaveski had behaved in a ‘disrespectful and immature matter’, making ‘persistent and childish interjections’. He had ‘jumped gleefully on a chair at the Bar table’ when Ms Slaveska gave an answer in cross examination that pleased him.[81] He repeatedly interrupted the cross-examination over several days. He tore part of his passport in an outburst in the court room. On 15 September 2009, Mr Slaveski behaved in a threatening manner towards counsel, and then threatened to swallow an excessive number of tablets. He put the tablets into his mouth but spat them out again. An ambulance was called.
[81]Ibid [52].
In his reasons for judgment of 1 October 2010, Kyrou J outlined further inappropriate conduct on the part of Mr Slaveski that occurred after 24 September 2009.[82] This included Mr Slaveski becoming abusive and unruly, using profane language and making scurrilous allegations against the defendants. On eight separate days, Mr Slaveski so interrupted witnesses’ evidence that his Honour ordered that he remain away from the court building for the remainder of those days. Mr Slaveski accused his Honour of bias and corruption, threatened witnesses, and accused court staff of tampering with evidence. On 2 June 2010, Mr Slaveski had thrown a tantrum lasting several minutes, during which he had ‘ranted and raved, uttered vulgarities and accused [his Honour] of being part of a conspiracy and of ‘probably’ being aware of an alleged attempt on his life that morning.’[83]
[82]Slaveski v Victoria [2010] VSC 441.
[83]Ibid [66] (Kyrou J).
On 1 October 2010, Kyrou J also made an order under r 75.07 of the Rules directing that the Prothonotary of the Court apply by originating motion for punishment of Mr Slaveski for contempt.
In his written submissions in this application, Mr Slaveski outlines at length complaints against police which led to him bringing proceeding 12 and his continuing concerns with regard to police. He also focuses on the fact that Kyrou J did not characterise the proceeding as vexatious and seeks to rely upon his success with regard to part of his claim.
It is, however, Mr Slaveski’s behaviour during the proceeding which is relevant to this application. I note that, in that regard, Mr Slaveski submits that it is obvious that he suffers from mental illness and Post Traumatic Stress Disorder. I also note that when Mr Slaveski’s behaviour in proceeding 12 on one particular day, 2 June 2010, was considered by Whelan J in contempt proceedings, his Honour took Mr Slaveski’s mental function abnormality or impairment into account when sentencing him for what he had nevertheless found to be Mr Slaveski’s deliberate conduct.[84]
[84]R v Slaveski (Sentence) [2012] VSC 7, [14].
Mr Slaveski also seems to seek to explain his behaviour before Kyrou J on 2 June 2010 on the basis that he was allegedly chased by police whilst he was travelling to court on a freeway. He claims that both he and Ms Slaveska were panic stricken upon their arrival at the court and that he was assaulted whilst trying to explain what had occurred to Kyrou J. In that context, he says, he attempted to take a number of tablets.
I note that in the subsequent contempt proceeding, proceeding 13, Whelan J accepted relevant police evidence to the effect that a member of the highway patrol had chased the Slaveskis on the Western Ring Road that morning after detecting Mr Slaveski speeding and had unsuccessfully tried to apprehend him.[85] His Honour had no hesitation in rejecting Mr Slaveski’s allegations that the police officer involved had threatened him and Ms Slaveska with a gun[86] or had been part of a conspiracy by police officers to murder Mr Slaveski in order to bring his case against police (proceeding 12) to an end.[87]
[85]R v Slaveski (contempt) [2011] VSC 643, [138].
[86]Ibid [133].
[87]Ibid [137].
R v Slaveski (contempt) (Supreme Court) No 04689 of 2011 (proceeding 13)
Proceeding 13 was the hearing of the contempt charge which focused on Mr Slaveski’s behaviour on 2 June 2010 in the trial before Kyrou J. Whelan J’s findings in proceeding 13 are relevant to consideration of Mr Slaveski’s behaviour in proceeding 12.
Whelan J described Mr Slaveski’s conduct (which he found to be intentional) as ‘an extraordinary and protracted outburst of anger and abuse’, ‘a tirade’, ‘abusive and threatening’, ‘conscious, voluntary and deliberate’ and ‘abusive and disruptive’.[88] He found that Mr Slaveski had threatened Kyrou J and had made allegations of impropriety, partiality and corruption on his part and that of the Court.[89] He had made 20 statements that ‘were abusive of the presiding judge, abusive of the Court, and disrupted and disturbed the proceeding.’[90] Whelan J concluded that:
His conduct had a clear tendency to interfere with and obstruct the due administration of justice. He challenged the authority of the Court, he alleged it was corrupt, and he interrupted the Court’s proceedings. His conduct detracted from the capacity of the Court to conduct proceedings which are dispassionate and rational both in fact and in appearance.[91]
[88]Ibid [5], [48], [120], [151], [153].
[89]Ibid [61], [63].
[90]Ibid [60].
[91]Ibid [154].
Rejecting Mr Slaveski’s claim that the record of proceedings before Kyrou J on 2 June 2010 had been tampered with, Whelan J also noted that extensive time and effort of court staff, transcript personnel, solicitors and others had been ‘needlessly wasted’ in pursuit of these allegations of serious wrongdoing that had ‘no apparent purpose and [were] without any proper foundation’.[92]
[92]Ibid [101].
When sentencing Mr Slaveski on 20 January 2012, his Honour described his behaviour on 2 June 2010 as ‘outrageous’.[93] His Honour addressed Mr Slaveski as follows in his sentencing remarks:
Your offending was serious. It was a very bad example of verbal abuse in a courtroom of the Court and the judge. Amongst other things, you loudly and aggressively accused the judge of being a party to a conspiracy to have you murdered. You threatened him. You subjected everyone present to a display of aggression and fury.
Your behaviour that day was not an isolated incident. You had previously behaved in ways which had resulted in your exclusion from the courtroom, and you had previously asserted in open court that the judge was corrupt.
[93]R v Slaveski (Sentence) [2012] VSC 7, [26].
Relevantly, Whelan J also took into account Mr Slaveski’s behaviour in proceeding 13 itself. His Honour said this:
The way in which you conducted your trial before me, after your legal advisers had withdrawn, is also a relevant factor in my view. You made entirely unfounded serious allegations of impropriety against Court staff, solicitors and employees of the Victorian Government Solicitor's Office, and your own counsel after they withdrew. You also made allegations of wrongdoing against a protective services officer and a police officer, which I have rejected.[94]
[94]Ibid [20]-[21].
His Honour also ordered that Mr Slaveski pay the costs of the proceeding on an indemnity basis, given the nature of and time devoted to his unfounded allegations of tampering with evidence as the reason for that order.[95]
[95]Ibid [29] n 16.
In relation to the contempt proceeding, Mr Slaveski also effectively submits that Whelan J was obliged to make findings against him.[96] I reject that proposition as baseless.
Slaveski v R (Court of Appeal) S APCR 0018 of 2012, S APCI 0188 of 2011 (proceeding 14)
[96]Affidavit of Lupco Slaveski, 13 February 2013, [31].
Mr Slaveski sought leave to appeal his conviction and sentence in relation to the contempt charge (proceeding 14). The application was heard by Warren CJ, Nettle and Redlich JJA.[97] During the proceeding, Mr Slaveski abandoned his application for leave to appeal his conviction, but later unsuccessfully sought to reinstate it. The Court of Appeal did grant him leave to appeal against sentence. It imposed the same sentence as was imposed by Whelan J, other than the penalty of a fixed term of imprisonment in the event of a default of payment of costs.
[97]Slaveski v R [2012] VSCA 48.
In his grounds of appeal against conviction, Mr Slaveski had alleged that Whelan J’s conduct gave rise to an apprehension of bias. In her judgment, Warren CJ stated the allegation was not made out, and that the complaint should not have been made.[98]
[98]Ibid [83].
In relation to the sentence appeal, the Chief Justice described Mr Slaveski’s conduct in the trial before Kyrou J as ‘reprehensible and intolerable’, noting his disregard for Kyrou J’s repeated warnings about his behaviour. Her Honour found that he was ‘deliberately disruptive, disrespectful and contemptuous of the court and its proceedings.’ Both specific and general deterrence were relevant sentencing factors notwithstanding Mr Slaveski’s mental condition and his sentence was not manifestly excessive.[99]
In the matter of an application by Lupco Slaveski for leave to issue a proceeding (High Court) No 72 of 2010 (proceeding 15)
[99]Ibid [95].
On 15 May 2010, in proceeding 15, Mr Slaveski sought leave ex parte in the High Court to issue an application removing proceeding 12 (which was continuing before Kyrou J) to the High Court. He alleged bias and conflict of interest on the part of Kyrou J. Leave was required because on 6 May 2010, the High Court had directed, pursuant to r 6.07 of the High Court Rules 2004 (Cth), that the Registrar refuse to issue the proposed application for removal without leave.
On 15 September 2010, Crennan J refused the application for leave. Her Honour stated:
The applicant alleges bias and conflict of interest in respect of the judge of the proceedings in the Supreme Court. No foundation for those claims is particularised in any material provided by the applicant. The application which the applicant seeks to issue would, if issued, be an abuse of process of the Court. It contains no arguable ground in support of the application for leave. Leave to issue the process is therefore refused.[100]
[100]In the matter of an application by Lupco Slaveski for leave to issue a proceeding (unreported, High Court of Australia, Crennan J, 15 September 2010).
Once again, Mr Slaveski had instituted a hopeless proceeding on inappropriate and untenable grounds.
Slaveski v Rotstein & Associates (Federal Magistrates’ Court) No MLG 646 of 2008 (proceeding 16)
Mr Slaveski was served with a bankruptcy notice after he failed to satisfy the costs order made against him in the Melbourne Magistrates’ Court on 1 April 2008 in the Rotstein proceedings, the subject of proceedings 3 and 7.
On 30 May 2009, he applied to the Federal Magistrates’ Court to have the bankruptcy notice set aside or dismissed or stayed in proceeding 16. The application was dismissed by a court registrar on 17 November 2008. On the same day, Mr Slaveski filed an application seeking that the registrar’s order be set aside and an order setting aside, dismissing or staying the bankruptcy notice be made in its place.
On 20 April 2009, this application was dismissed by Riethmuller FM. On the same day, Mr Slaveski applied to reinstate his application.
On 15 May 2009, Burchardt FM reinstated Mr Slaveski’s original application, as it had been made in his absence after he had attended for part of the day of the hearing. Burchardt FM then dismissed Mr Slaveski’s application, concluding that none of the matters raised had ‘any merit’[101] and awarding costs against him. Burchardt FM noted that Mr Slaveski had ‘made a number of assertions very critical of Riethmuller FM and indeed other judicial officers, including Hansen J of the Supreme Court.’[102] He declined to comment on them, but described Mr Slaveski’s allegations of conspiracy and fraud on the part of the Melbourne Magistrates’ Court as ‘inherently outrageous’ and ‘somewhat improbable’.[103]
[101]Slaveski v Rotstein & Associates Pty Ltd [2009] FMCA 443, [44].
[102]Ibid [32].
[103]Ibid [46].
He also observed that:
It is obvious that [Mr Slaveski] is very vividly engaged by what he perceives to have been his misfortunes imposed by various authorities including, and most particularly, the Commonwealth Bank.[104]
[104]Ibid [26].
Slaveski v Citygroup Pty Ltd (High Court) No S191 of 2008 (proceeding 17)
On 15 May 2008, Mr Slaveski filed an application for special leave to appeal from a judgment of the New South Wales Court of Appeal in the High Court, commencing proceeding 17. Citygroup Pty Ltd had sued Mr Slaveski in the NSW Local Court, claiming monies allegedly owing through use of a Citygroup credit card. On 6 December 2006, Helipurn LCM had given judgment for Citygroup.
On 26 December 2006, Mr Slaveski had appealed to the Supreme Court of New South Wales. There had been a number of adjournments at his request before Malpass AsJ refused another on 11 July 2007 and dismissed the appeal.[105] His Honour concluded that there were no specific grounds of appeal and found ‘a lack of material before the Court from which any possible error could be gleaned.’[106]
[105]Slaveski v Citygroup Pty Ltd [2007] NSWSC 757.
[106]Ibid [13].
On 21 April 2008, Mason P and Handley AJA of the New South Wales Court of Appeal refused Mr Slaveski’s application for leave to appeal from the decision of Malpass AsJ.
Mr Slaveski then applied to the High Court for special leave to appeal from the Court of Appeal. On 6 August 2008, Hayne and Crennan JJ refused the application, indicating its hopelessness and stating that:
The Court of Appeal concluded that the applicant had no arguable case that the Associate Justice erred in dismissing the summons before him. There is no reason to doubt that conclusion. An appeal to this Court would enjoy no prospect of success.[107]
[107]Slaveski v Citygroup Pty Ltd [2008] HCASL 429, [2].
Lupco Slaveski v Paul Smith (High Court) No M29 of 2012 (proceeding 18)
On 27 March 2012, Mr Slaveski commenced proceeding 18, seeking special leave from the High Court to appeal from a decision of the Victorian Court of Appeal. The Court of Appeal had answered questions of law referred to it by the County Court under s 33(1)(b) of the Charter.
The County Court proceeding was an appeal from Mr Slaveski’s Magistrates’ Court conviction for making a threat to kill. Mr Slaveski had been granted legal aid in respect of the appeal, but was unrepresented at the time the appeal. The questions related to the interaction of the right to legal representation and the provision of legal aid. On 29 February 2012, the Court of Appeal held unanimously that Mr Slaveski had no absolute right to legal representation under the Charter.[108]
[108]Slaveski v Smith [2012] VSCA 25, [52] (Warren CJ, Nettle and Redlich JJA).
Mr Slaveski’s application to the High Court for special leave was dealt with on the papers and dismissed on 13 November 2012. Heydon and Bell JJ doubted that an appeal to the High Court was available in respect of the Court of Appeal’s answers to the referred questions of law. They nevertheless went on to say:
But even if an appeal does lie to this Court, the applicant has stated no ground for doubting the correctness of the Court of Appeal’s conclusions. The applicant’s allegations of bias, conflict of interest and denial of justice must fail. There are other allegations which would depend on evidence, of which there is none. The applicant has not effectively challenged the Court of Appeal’s legal reasoning.[109]
[109]Slaveski v Smith [2012] HCASL 142, [3].
The Attorney-General argues that this proceeding was, amongst other things, instituted without any reasonable grounds. I agree.
Lupco Slaveski v The Queen (High Court) No M42/2012 (proceeding 19)
On 24 April 2012, Mr Slaveski commenced proceeding 19, an application to the High Court for special leave to appeal from the Court of Appeal’s decision in proceeding 14.
In his application to the High Court, Mr Slaveski stated the grounds of appeal in this way:
2. The Honorable [sic] Justices erred in Law, and were Bias.
3.Bias, as the Supreme Court Chief Judge Warren was acting in “Conflict of Interest” as she holds (2) very powerful positions in the State of Victoria:
a)Supreme Court Chief Justice
b)Lieutenant Governor of Victoria
4.Failed Statutory Interpretation
5.Failed to properly interpret the Law and the Charter of Human Rights and Responsibilities 2006
6.Denied my Human Rights
7.Denied my Natural Justice
8.I was denied a fair hearing, as I was brought from prison handcuffed on the day of the hearing, and had no proper documents.
9.I was given a Solicitor by the Supreme Court while I was in Prison his name is … and he blackmailed me to withdrew “all” the claims against the State of Victoria, and the Police, and I will get released from Prison that day, further … told me that he spent few hours in the Supreme Courts Chief Judges Chambers discussing doing deals and going through my files. I was “blackmailed”
10.Denied procedurals [sic] fairness, as I was not given an adequate time and opportunity to do Submissions, I was only given 1 day to reply/do Submissions, in prison there is no computers nor Internet to send
The application was also dealt with on the papers and dismissed by Heydon and Bell JJ on 13 November 2012. Their Honours said:
The papers filed by the applicant in support of his application for special leave to appeal to this Court are almost unintelligible. They disclose no ground on which an appeal might succeed if special leave were granted.[110]
[110]Slaveski v The Queen [2012] HCASL 144, [3].
The Attorney-General argues that proceeding 19 was also issued without a reasonable ground. I agree.
Conclusion
I am satisfied that the requirements of s 21 have been satisfied in terms of Mr Slaveski having habitually and persistently instituted vexatious proceedings by proceedings 1, 2, 4, 5, 7, 9, 10 and 11. I must decide whether, in light of his conduct as a whole, in all the circumstances an order should be made in the exercise of my discretion.
I take Mr Slaveski’s conduct in proceedings 12 to 19 into account, as well as his conduct in this application when looking for the clear and compelling case I must find made out before an order can be made. Proceedings 12 to 19 variously show instances of Mr Slaveski persisting in bringing hopeless proceedings upon untenable grounds, refusing to accept determinations of the courts, engaging in abusive and inappropriate behaviour and making inappropriate allegations against members of the judiciary and others. This application has been another in which his behaviour has been at times abusive and he has made inappropriate allegations and behaved in an unacceptable manner.
I am satisfied that the Attorney-General has made out the requisite clear and compelling case for the making of the order sought. I am not persuaded to make a modified form of order of the type proposed by Mr Glick on the basis of the availability of other judicial power to deal with abuse of process. I am not persuaded that it would be appropriate to limit the restriction as Mr Glick suggests to cases in which Mr Slaveski does not engage a solicitor prepared to give a certificate as to the proper basis for the proceeding. Such an order would not be appropriate as Mr Slaveski has had a tendency to dispense with retained solicitors and counsel in the past after commencing proceedings.[111]
[111] See Attorney-General v Wentworth (1988) 14 NSWLR 481, 493 (Roden J).
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