R v Slaveski (Appln to set aside contempt orders)

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE
COMMON LAW DIVISION
CIVIL LIST

S CI 2013 04426

THE QUEEN (on the application of the

Attorney-General of the State of Victoria)

Applicant

LUPCO SLAVESKI (by his litigation guardian TANIA SLAVESKI)

Respondent

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JUDGE:	RIORDAN J
WHERE HELD:	MELBOURNE
DATE OF HEARING:	20, 21 JUNE 2017
DATE OF JUDGMENT:	5 SEPTEMBER 2017
CASE MAY BE CITED AS:	R v Slaveski (Appln to set aside contempt orders)
MEDIUM NEUTRAL CITATION:	[2017] VSC 526

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PRACTICE AND PROCEDURE – Application for leave to proceed under s 55 of the Vexatious Proceedings Act 2014 – Application to set aside conviction for contempt obtained in absence of the respondent – Relevant principles – Application to extend time within which to apply to set aside orders – Relevant principles – Respondent deliberately did not attend trial – Absence of bona fide defence on the merits – Rules 1.05(1), 3.02, 15.03, 45.03 and 49.02 of the Supreme Court (General Civil Procedure) Rules considered.

VEXATIOUS LITIGANTS – Application of Vexatious Proceedings Act 2014 to a person declared a vexatious litigant under s 21 of the Supreme Court Act 1986.

CONTEMPT – Application of r 49.02 of the Supreme Court (General Civil Procedure) Rules 2015 to contempt proceedings – Whether Court has jurisdiction over contemptuous emails sent from outside the jurisdiction.

MENTAL HEALTH – Fitness to plead – Application of Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 to contempt proceedings – Contempt an indictable offence – Whether the respondent’s mental health is an adequate explanation for his failure to attend trial and bring application to set aside orders.

HANDICAPPED PERSON – Application of rules with respect to appointment of litigation guardians to contempt proceedings – Whether the respondent was a handicapped person within the meaning of O 15 of the Supreme Court (General Civil Procedure) Rules 2005 – Whether the failure to appoint a litigation guardian makes the proceeding voidable at the option of the handicapped person – Whether a disability under O 15 of the Supreme Court (General Civil Procedure) Rules 2005 was akin to unfitness to plead under the Crimes (Mental Impairment and Unfitness to be Tried) Act1997 – Whether a failure to appoint a litigation guardian invalidates the proceeding.

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APPEARANCES:	Counsel	Solicitors
For the Applicant	Mr J Langmead QC with Ms F K Forsyth	Victorian Government Solicitor
For the Respondent	Mr L J D Howson	Marcevski Lawyers

INDEX

The Application

Procedural history of the contempt proceedings before King J and the current application

History of other proceedings and previous contempt charges of Slaveski

Email communications from Slaveski after leaving Australia

Fresh medical evidence

Slaveski’s submissions

Orders of King J voidable under r 15.04
Orders of King J voidable as akin to proceeding against an accused who was unfit to plead; and akin to a denial of natural justice
Defence on the merits

Attorney-General’s Submissions

Principles to be applied on the applications

Decision

Rule 49.02 does apply to contempt proceedings
Slaveski has failed to give an adequate explanation for the delay in making this application for an extension of time and a new trial.
Slaveski has failed to give an adequate explanation for his failure to attend the trial.
Slaveski has failed to establish that there is a bona fide issue to be tried or an arguable case
No entitlement to set aside the judgment of King J because of non-compliance with r 15.04.
A failure to appoint a litigation guardian does not invalidate the proceeding
No sufficient evidence that Slaveski was a ‘handicapped person’ for the purposes of this proceeding
Non-compliance with r 15.04 does not render a proceeding voidable by the respondent

No entitlement to set aside the judgment of King J because Slaveski’s disability was akin to an unfitness to plead or he was denied natural justice
No entitlement to set aside the judgment of King J because of a non-compliance with r 45.03 of the 2005 Rules
No bona fide defence on the merits

Conclusion

HIS HONOUR:

On 14 August 2015, King J made the following orders and declarations in this matter:

1.The requirements of Rules 5.03(1) and 8.02 of the Supreme Court (General CivilProcedure) Rules 2005 be dispensed with.
2.The applicant be authorised to commence this proceeding by originating motion in Form 5C.
3.A declaration that the Respondent be adjudged guilty of contempt of Court for his conduct and words spoken on 31 August 2012 during a telephone conversation with Daniel Coombes, Associate to the Honourable Justice Daly (Charge 4).
4.A declaration that the Respondent be adjudged guilty of contempt of Court for his conduct and words spoken on 19 August 2013 during a proceeding in the Melbourne Magistrates' Court before Chief Magistrate Lauritsen (Charge 5).
5.A declaration that the Respondent be adjudged guilty of contempt of Court for sending each of the following seven emails:
(a)an email to Stephen Lee of the Victorian Government Solicitor's Office on 5 October 2013 (Charge 6);
(b)an email to Stephen Lee of the Victorian Government Solicitor's Office on 7 October 2013 (Charge 7);
(c)an email to the Supreme Court on 15 September 2013 (Charge 8);
(d)an email to the Supreme Court on 5 February 2014 at 10.59 am (Charge 9);
(e)an email to the Supreme Court on 5 February 2014 at 9.25 pm (Charge 10);
(f)an email to the Supreme Court on 25 February 2014 (Charge 11);

(g) an email to the Supreme Court on 11 March 2014 (Charge 12);
6.The respondent be committed to prison for a term of 4 months in respect of the contempt declared in paragraph 3 hereof (Charge 4).
7.The respondent be committed to prison for a term of 6 months in respect of the contempt declared in paragraph 4 hereof (Charge 5).
8.The respondent be committed to prison for a term of 2 months in respect of the contempt declared in paragraph 5(a) hereof (Charge 6).
9.The respondent be committed to prison for a term of 6 months in respect of the contempt declared in paragraph 5(b) hereof (Charge 7).
10.The respondent be committed to prison for a term of 4 months in respect of the contempt declared in paragraph 5(c) hereof (Charge 8).
11.The respondent be committed to prison for a term of 6 months in respect of the contempt declared in paragraph 5(d) hereof (Charge 9).
12.The respondent be committed to prison for a term of 3 months in respect of the contempt declared in paragraph 5(e) hereof (Charge 10).
13.The respondent be committed to prison for a term of 6 months in respect of the contempt declared in paragraph 5(f) hereof (Charge 11).
14.The respondent be committed to prison for a term of 9 months in respect of the contempt declared in paragraph 5(g) hereof (Charge 12).
15.It is further ordered that one month of the sentence referred to in paragraph 6 hereof, three months of the sentence referred to in paragraph 7 hereof, three months of the sentence referred to in paragraph 9 hereof, one month of the sentence referred to in paragraph 10 hereof, two months of the sentence referred to in paragraph 11 hereof, one month of the sentence referred to in paragraph 12 hereof, and three months of the sentence referred to in paragraph 13 hereof are to be served cumulatively upon each other and upon the sentence referred to in paragraph 14 hereof, so that the respondent be committed to prison for a total effective term of 23 months.
16.The respondent is to serve a minimum of 15 months imprisonment before becoming eligible for parole.
17.That the respondent pay the costs, including the reserved costs, of the applicant on a standard basis.
18.That the arrest warrant issued on 14 April 2014 pursuant to the order made on that date be stayed.
19.That a committal warrant be issued to the Australian Federal Police and/or Victoria Police for the arrest of the respondent, pursuant to the terms of this order.

The Application

By summons filed 2 June 2017, the respondent (‘Slaveski’) has applied for orders:

(a)extending the 14 day period prescribed under r 49.02(3) Supreme Court (General Civil Procedure) Rules 2015 (‘the 2015 Rules’), pursuant to r 3.02 of the 2015 Rules; and
(b)setting aside the orders of King J made on 14 August 2015 pursuant to r 49.02(2) of the 2015 Rules.

The actual orders sought by Slaveski are as follows:
1.        leave to resurrect proceeding SCI 2013 04426;
2.        leave to abridge or extend time as required;
3.        leave to enter an appearance after judgment under r 8.07;
4.orders under r 49.02(2) setting aside the orders of King J on 12 August 2015 declaring the defendant is in contempt of the Supreme Court 'relating to charges 4-12’;
5.orders under r 49.02(2) setting aside the orders of King J on 14 August 2015 committing the defendant to prison;
6.orders under r 49.02(2) setting aside the orders of King J on 14 August 2015 for costs.
7.ancillary orders.

Rule 49.02 of the 2015 Rules provides as follows:

(1)If, when the trial of a proceeding is called on, any party is absent, the Court may—
(a)order that the trial be not had unless the proceeding is again set down for trial, or unless such other steps are taken as the Court directs;
(b)proceed with the trial generally or so far as concerns any claim for relief in the proceeding; or

(c) adjourn the trial.
(2)The Court may set aside or vary any judgment, order or verdict obtained where a party is absent at the trial.
(3)An application under paragraph (2) shall be made within 14 days after the trial.

As the hearing developed, the application of Slaveski would further extend to seeking the following orders:

(a)leave to commence a proceeding under s 54 of the Vexatious Proceedings Act 2014; and
(b)the orders of King J be set aside pursuant to the inherent power of this Court.

The need for the application for leave to commence a proceeding under s 54 of the Vexatious Proceedings Act 2014 arose from the following circumstances:

(a)On 25 February 2014, Williams J declared Slaveski to be a vexatious litigant pursuant to s 21 of the Supreme Court Act 1986.[1]
(b)Section 91 of the Vexatious Proceedings Act 2014 provides that an order declaring a person to be a vexatious litigant under s 21(2) of the Supreme Court Act 1986 is taken on and from the repeal of that section to be a general litigation restraint order made by the Supreme Court under s 29 of the Vexatious Proceedings Act 2014.
(c)Under s 30(1)(b) of the Vexatious Proceedings Act 2014, a person subject to a general litigation restraint order must not commence any proceeding in the Supreme Court without leave of the Supreme Court.
(d)The definition of ‘proceeding’ in s 3 of the Vexatious Proceedings Act 2014 includes any interlocutory application.

[1]A-G v Slaveski [2014] VSC 48.

When the summons came on for directions before me on 5 June 2017, counsel for Slaveski accepted the Attorney-General’s submission that Slaveski was required to first apply for leave to proceed under the Vexatious Proceedings Act 2014. Accordingly, the application for leave to proceed was fixed for hearing on 20 June 2017 on the basis that it would be heard together with Slaveski’s substantive applications at that time. Directions were made for the filing of material and submissions by each party.

Procedural history of the contempt proceedings before King J and the current application

By originating motion filed 23 August 2013, the Attorney-General sought a declaration that Slaveski be adjudged guilty of contempt of court:

(a)for sending six bank cheques each in the sum of $5,000 made out to five Judges of this Court and the Chief Executive Officer (Charges 1, 2 and 3).
(b)for his conduct and words spoken on 31 August 2012 to the Associate of an Associate Justice of this Court (Charge 4).

Attempts to personally serve the originating motion on 8 September and 10 September 2013 were unsuccessful.

By amended originating motion filed 13 September 2013, the Attorney-General sought a further declaration that Slaveski be adjudged guilty of contempt of court for his conduct and words spoken on 19 August 2013 during a proceeding in the Melbourne Magistrates’ Court before the Chief Magistrate (Charge 5).

On 16 September 2013, the hearing of the separate proceeding where the Attorney-General applied for Slaveski to be declared a vexatious litigant under s 21 of the Supreme Court Act 1986 was completed, and Williams J reserved her decision.

Attempts to personally serve the amended originating motion on 17 and 18 September 2013 were also unsuccessful.

By email of 20 September 2013 to a lawyer of the Victorian Government Solicitor’s Office, Slaveski stated that he had left the country.

On 2 October 2013, King J made an order for substituted service on Slaveski by the following methods:

(a) email to a specified email address;
(b) registered post to two street addresses.

By further amended originating motion filed 6 December 2013, the Attorney-General applied for further declarations that Slaveski be adjudged guilty of contempt of court for:

(a)sending an email to a lawyer the Victorian Government Solicitor’s Office on 5 October 2013 (Charge 6); and
(b)sending an email to a lawyer of the Victorian Government Solicitor’s Office on 7 October 2013 (Charge 7).

By second further amended originating motion filed 15 April 2014 (pursuant to leave granted on 14 April 2014) the Attorney-General sought further declarations that Slaveski be adjudged guilty of contempt of court for:

(a) sending an email to the Supreme Court on 15 September 2013 (Charge 8);
(b)sending two emails to the Supreme Court on 5 February 2014 (Charges 9 and 10);

(c) sending an email to the Supreme Court on 25 February 2014 (Charge 11); and
(d) sending an email to the Supreme Court on 11 March 2014 (Charge 12).

On 17 June 2014, King J granted an application by the Attorney-General to proceed with the summary trial in the absence of Slaveski. During the hearing of the application, counsel for the Attorney-General made submissions with respect to Slaveski’s fitness to plead. Because her Honour’s ruling is important in the determination of the present applications, I set it out in full:

Upon the application of the Attorney-General I have determined that I should proceed to hear the contempt charges laid against Lupco Slaveski, despite his absence from the jurisdiction. The respondent is absent and unrepresented in these proceedings and accordingly, I have a duty and an obligation to raise and consider all arguments, that may have been argued or submitted, as if he had had the benefit of counsel.
I will provide at this stage brief reasons and I may provide further expanded reasons at the time of judgment in respect of the contempt charges brought against him, if I consider it necessary.
The proceedings were commenced by originating motion on 23 August 2013 and related to alleged contempts of the Supreme Court, by way of provision of bank cheques to nominated judges, and the CEO of the court on 4 July 2012, a telephone discussion with an associate to an Associate Justice of the court on 31 August 2012. That process, commencing over one year subsequent to the first alleged contempts.
Further subsequent alleged contempts were charged against the respondent between the time of issue of the first originating motion and date for hearing, today. Those contempts are alleged to have occurred on 5 and 7 October 2013, each relating to an email sent to a legal officer of the Victorian Government Solicitor’s Office, an email on 15 September 2013, two separate emails on 5 February 2014, a further email on 25 February 2014 and finally on 11 March 2014, all directed to the Supreme Court to different persons within the court.
The Attorney-General made an application for substituted service in relation to the service of the first unamended originating motion, as it was submitted that the respondent had absented himself from the jurisdiction or had made himself unavailable for service. Evidence was placed before me and I determined that I was satisfied, at that stage, that the respondent was avoiding service and directed that substituted service would be sufficient.
Since that time, the respondent has sent to the court and various other places, [a] series of emails relating to these contempt charges. Such, that I am satisfied beyond reasonable doubt that he is fully cognisant of these charges, together with the affidavits and exhibits filed and served in support of those charges.
On each occasion the matter has come to court, the respondent’s wife and daughter have been present, and although not a party to the proceedings, Mrs Slaveska has been permitted to inform the court of matters that she thought may be of assistance to the respondent. Her husband’s subsequent emails demonstrate a continued ongoing discussions with Mrs Slaveska and knowledge of what has occurred in the proceedings, often that same day.
The respondent has consistently, through his emails, addressed to my associate, indicated that he would not return to the jurisdiction, or attend the proceedings unless certain demands of his were met. Most particularly, including a guarantee that he would not be harmed in the court. Despite assurances that he would be safe in court, the respondent has demanded that I guarantee his safety with my life. As has been explained to his wife and recorded in the transcript, which was available to him and his wife, he would be safe in any court room of this court. It is not the function of any judge of this court to give personal guarantees, to try and ensure the attendance of a respondent.
Ms Forsyth, on behalf of the Attorney-General, has made submissions that this trial should continue, despite the absence of the respondent from proceedings and I do uphold the submission she has made. Whilst contempt is commenced by and follows the rules of civil procedure, it is an offence of a criminal nature, particularly where, as is the case here, the penalty sought to be imposed is criminal in nature, being a fine and/or imprisonment. What flows from that is the principles [require that the] trial should be conducted in the presence of the charged person.
It is an important principle and not lightly put to one side, but the courts have determined that there may be exceptions to that rule. The principle exists to assist an accused person, to ensure that they have a full and complete opportunity to hear and know the allegations against them, as well as have the ability to answer any particular charge, challenge a piece of evidence, be heard in their own defence and make any submissions that may be necessary, on the appropriate penalty be imposed, if convicted for the offence. It is a most important safeguard against the State behaving in an oppressive manner or breaching the human rights of its citizens.
One of the most important bases therefore, for the exercising of the discretion to allow the proceedings to be heard in the absence of the accused, is if the accused has voluntarily waived his right to be present at the hearing.
The court, comprising Maxwell P and Buchanan and Weinberg JJA,[2] cited with approval the statement of Lander J in R v Jones:
[2]R v Mokbel (2010) 30 VR 115, 125 [41].
[I]f the court is satisfied that the accused has waived his or her right to be present during the trial and that the trial may proceed without any injustice to that person, except injustice caused by the accused’s own waiver, then the court may proceed with the accused’s trial.[3]

[3](1998) 72 SASR 281, 295.

They noted that any discretion to proceed in the absence of an accused, however, should be exercised sparingly. And that, quoting again from Lander J:
There must be circumstances where a trial can proceed in the absence of the accused. Otherwise any accused, who was on bail, and who believed at some time during the trial that his or her prospect of an acquittal was remote, could absent himself or herself from the trial and thereby force a new trial. That cannot be right. If that was a principle then it would be necessary to revoke the bail of all accused people at the outset of their trial.[4]
[4]Ibid.

In this case, the respondent has absented himself prior to the service of the charges and I am satisfied that he absented himself to avoid service and attendance at his trial, departing this country in September of 2013. He has indicated many times in the exhibits attached to the various affidavits that he is living overseas, will not return to Australia for the trial and has made statements indicating he would like to participate in this trial, but will not return to the country to enable that to occur.
He has, via numerous emails to different persons, stated variously he would go to a German court, near to, but not inside an Australian embassy somewhere in Europe, he would involve Skype and/or a video link. It is not even known at this point in what country the respondent is living, or what if any, facilities are available. Despite the protestations of the respondent, there has been, in my view, no serious attempt to put forward any alternative means of hearing these charges.
The applicant has submitted that before I proceed with a hearing in the absence of the respondent, I should ensure that I am satisfied of a number of matters, which were determined and referred to by Lander J in R v Jones and applied by [Pembroke] J in the decision of Ronowska v Kus [No 2] being:
An assessment of the strength of the Crown case and the nature of the Crown case, the defence in so far as it has been disclosed, the length of time over which the case has run and will run, the prejudice that the accused might suffer, the risk of a miscarriage of justice, the inconvenience to the victims and the witnesses, and the impact upon the administration of justice.[5]
[5]Ibid 297, cited in Ronowska v Kus [No 2] (2012) 221 A Crim R 261, 275 [57].

In relation to those matters, I am satisfied that at least some of the Crown cases are strong cases and the nature of the contempts, if they be proved beyond reasonable doubt, have been increasing in seriousness. Moving, it is alleged, from perceptions of bribery and corruption, to threats of physical harm and even death being inflicted upon various legal and judicial officers.
The reason the case may be described as strong is that it is in almost every case the written words of the respondent that comprise the particulars of the charges of contempt.
It is difficult to see under those circumstances what defence would be raised and available to the respondent, were he present to contest these matters. The trial itself would not be of great duration. The inconvenience to the victims and witnesses is not, in my view, of any particular significance.
The two important issues are the impact upon the administration of justice and equally the prejudice that the respondent might suffer, which is tied in with the issue of the risk of a miscarriage of justice.
The proceedings in these matters were not instigated until August of 2013, despite the initial contempts being alleged to have occurred in early July of 2012. Contempts are matters that should be dealt with swiftly, particularly when they relate to allegations of the type and nature alleged in this case. The contempts have allegedly escalated in severity, and prompt early condemnation of the initial contempts, if they be proved, may well have prevented such ongoing behaviour. Whilst I am concerned that the initial contempts were not dealt with in the most expeditious of manners, the nature of the subsequent contempts makes it important that there be a determination of whether or not the respondent has committed such serious contempts of the court, and if not, to be permitted to get on with his own life, but if convicted, to have made clear to him the seriousness with which a court may view such behaviour.
In terms of the issue of the impact of these alleged contempts upon the administration of justice, there is no doubt that it is important to the court, the judicial officers, the legal officers and other members of staff of the court, as well as the public confidence in the court and its administration, that if contempts are committed upon them, that they be punished appropriately and preferably swiftly. Equally it is just as important that if all or some of this behaviour does not amount to a contempt of court, that the respondent and all others involved in the courts equally understand that.
In terms of the possible defences that the respondent may raise, as far as I can understand from the various emails sent and exhibited within the material, he appears to be of the view that he is justified in all statements made and actions taken, because he believes the court has been conspiring with members of its staff and others, to either kill him or cause him harm. I am unable to see a defence to the action or words contained in his beliefs, but I will when examining the evidence, keep in mind that it is his view, and I will when examining the evidence keep in mind that it is his view and will examine the elements of the offence, keeping that knowledge at the forefront of my deliberations.
I have considered the aspect of prejudice he might suffer, and have raised my concerns with Ms Forsyth. They are twofold. I have medical assessments that I have read that indicate he appears, at least in 2013 and possibly 2012, to have been suffering from mental health conditions, possibly such as post-traumatic stress disorder, or bipolar disorder, or a narcissistic personality disorder. None of the material was totally definitive, and of course it is now aged.
The emails which have been exhibited have also caused me concern, in that they do, on the face of them, indicate that the respondent may well have mental health issues. Further both the respondent and his wife say that he has mental health problems, without being entirely specific. The first concern this raised with me was: would he have been fit to run his trial, if he had been present in court, or would he have a potential to possibly be found unfit.
He was examined by Dr Danny Sullivan, in respect of that issue, on the occasion of his last contempt charges before the court, heard by Whelan J, as he then was. The report by Dr Sullivan addresses the criteria for unfitness to plead, and details why he was, in the opinion of that psychiatrist, fit to plead. He found that the respondent interprets a range of mundane events as self-directed, and that there is a persecutory and grandiose flavour to many of his statements and behaviours, that his beliefs were not amenable to argument, and that he has become obsessed with seeking vindication through the courts for a range of matters. He said, he also exhibited more sustained underlying personality vulnerabilities, with paranoid and narcissistic elements.
He found that the respondent’s view was that preceding events justified his behaviour, and that consequently he would plead not guilty. He found that the respondent was able to clearly explain the nature of the charges, capable of entering a plea, and that he had a clear understanding of the legal issues associated with the matters. He found that he had a clear factual appreciation of the evidence forming the basis of the charges, and despite his claim as to the veracity of the videotape recording, he didn’t dispute the substantial nature of the evidence which was an account of that conduct. He said, however that the respondent felt he was justified, and that he in fact was the victim of an unwarranted assault. He believed the respondent would be able to follow the course of the trial and instruct his legal advisers, even though he may not develop a trusting relationship with them.
It is apparent to me that the situation is remarkably similar in the cases before me. Whilst I raise the matter as it was something that may have been raised by the respondent’s practitioner if he had instructed any to appear, I am also now satisfied that whilst his behaviour can be described as rude, difficult and even possibly paranoid, there is nothing within his behaviour at this time that gives rise to a concern that he will be unfit, or would have been unfit to stand his trial.
I equally have nothing to suggest that there was any mental impairment defence that would be open to him on the material before me.
My second concern relates to the issue of sentence, if we ever arrive at that point, as the issue of his mental health may in my view have a significant bearing on the disposition that the court may think is appropriate. The case of Verdins may become a matter of some significance. I would propose accordingly to hear the charges and if there is a conviction upon any of the charges, then I would provide the respondent with another opportunity to return to Australia to provide any material for the consideration of the appropriate sentence. If that does not occur, I would then hear a further application to proceed to sentencing in his absence.[6]

[6]Footnotes and emphasis added.

After her Honour’s ruling, the trial proceeded on 17 and 18 June 2014 in the absence of Slaveski.

On 12 August 2015, King J published her reasons[7] for the making of declarations that Slaveski was in contempt of court in respect of charges 4–12. Her Honour was not satisfied of Slaveski’s guilt beyond reasonable doubt with respect to charges 1–3, which related to the six cheques sent to the Judges and the CEO of this Court, and so made no findings of contempt of court in relation to them.
[7]R v Slaveski [2015] VSC 400.

On 13 August 2015, King J heard submissions with respect to penalty. Mrs Slaveska, Slaveski’s wife, appeared and filed written submissions and the following 14 doctors’ reports:

(a)       23 January 2009 – Shalika Ranaweera, psychologist;
(b)      21 September 2009 – Shalika Ranaweera;
(c)       6 November 2009 – Shalika Ranaweera;
(d)      16 November 2009 – Dr G Duggal, general practitioner;
(e)       30 November 2009 – Dr R W Farnbach, psychiatrist;
(f)       23 May 2005 – Dr M J Williams, cardiologist;
(g)      5 December 2011 – Shalika Ranaweera;
(h)      16 September 2012 – Vibhavadi Hospital, Bangkok;
(i)       2 October 2012 – Dr S H Alnutt, psychiatrist;
(j)        6 March 2013 – Dr B Lui, emergency physician, Northern Hospital;
(k)      25 June 2013 – Dr G Duggal;
(l)       22 August 2013 – Dr R W Farnbach;
(m)3 July 2014 – Dr Deni Razmoski, Macedonia (in Macedonian and translated into English); and
(n)27 October 2014 – Dr R W Farnbach.

Mrs Slaveska’s submissions were made with the following qualification: ‘I do not have any instructions from Mr Slaveski nor am I representing him in this matter, but as my duty as a wife for 23 years and as my duty to my children as Slaveski being their father and including assisting the Court, I would submit the following’. The submissions, in unedited form, included the following:

12.He has never ever ran away from Court, nor refuse to appear in Court. His last Court appearance from my memory was on 16 September 2013 before justice Williams where I was appearing as Litigation guardian with Mr Glick QC. This day PSO’s (Protective Service Officers) withdrew Guns on him in my presence and my older daughter’s presence . Out of fear Mr Slaveski left and I also left the Court on that day as well my daughter and did not return.
13.Mr Slaveski was in fear and he told me that if he does not leave the country he is scared that he will be shot. He also presented fear as his children will get hurt. He said he was fearful for his life and he seriously took the threat (comments that were made on CCTV footage from the Court of Appeal on February 2012 – that he needs a 38 calibre ventilation, this relay bothered him).
14.In my view, this day before Justice Williams was his breaking point and he left the country within a day or two. He said he will not ever return to court in Australia unless a Judge guarantees for his safety.
15.Mr Slaveski has mental illness and everything contributes to his mental health. I have watched him over the years and his health has really gone worse, and I believe now as he is away from his family especially his children , he is at his worst.

On 14 August 2015, King J gave reasons[8] for sentencing and formally made the orders referred to above at [1]. Prior to sentencing Slaveski, King J had regard to the findings of Kyrou J in December 2011 and was provided with ‘a large number of those same reports’.[9] Her Honour also had reference to, and agreed with,[10] the following findings of Whelan J with respect to Slaveski’s mental health in R v Slaveski (Sentence) stating:

Your own affidavit and the affidavit of your wife refer extensively to your psychiatric history. There were a number of reports tendered and oral evidence was also given in the course of the trial on this issue. One of the psychiatrists who gave evidence at the trial, Dr Farnbach, has prepared an updated report which is exhibited to your affidavit.
On the evidence before me, I conclude that you suffer from a mental disturbance involving, among other things, very significant anxiety. One psychiatrist, Dr Sullivan, considers that you suffer from a delusional disorder; another, Dr Farnbach, is of the opinion that you meet the criteria for post-traumatic stress disorder. Ms Ranaweera, a psychologist, has also diagnosed post-traumatic stress disorder. Both Dr Farnbach and Dr Duggal consider that there will be, or may be, deterioration in your psychiatric condition if you are imprisoned.
I am satisfied that at the time of your offence you suffered from a mental disorder or abnormality or impairment of mental function, and that you still do so. It does not matter how that condition is to be categorised. It was a condition which impaired your ability to exercise appropriate judgment.
In accordance with applicable authority my conclusion is that your mental condition was such that it reduces your moral culpability, it has a bearing on the kind of sentence to be imposed, it moderates without eliminating the need for general deterrence and specific deterrence, it means that a sentence of imprisonment will weigh more heavily on you than on others, and there is a risk of an adverse effect on your mental health if imprisonment is imposed on you.[11]

[8]R v Slaveski [2015] VSC 416.

[9]Ibid [11].

[10]Ibid [17]–[18].

[11][2012] VSC 7 [11]–[14].

In September 2015, Slaveski applied for leave to appeal against the conviction and sentence of King J under pt 6.3 of the Criminal Procedure Act 2009. In support of the application, Slaveski sent a document entitled ‘Submissions of Ljupco Slaveski’ dated 16 September 2015 to the solicitors for the respondent to the application, who provided the document to the Court of Appeal.

On 18 September 2015, the Court of Appeal dismissed Slaveski’s application for leave to appeal against the conviction and sentence of King J without adjudication on the merits.[12]
[12]Slaveski v The Queen [2015] VSCA 264 (Priest JA and Croucher AJA).

On 7 April 2016, the High Court dismissed an application for special leave to appeal against the decision of the Court of Appeal of 18 September 2015.[13]
[13]Slaveski v The Queen[2016] HCASL 41.

Slaveski returned to Australia on about 30 January 2017, having notified appropriate police officers of his intention to do so; and was immediately imprisoned pursuant to the committal warrant issued by King J.

From 7 February 2017, Slaveski’s solicitors attempted to obtain access to the file relating to Slaveski’s contempt convictions. There were significant difficulties encountered in obtaining access to the file; but, after giving certain undertakings, access was provided to the file on 10 May 2017. On receipt of the materials, Mr Marcevski, the solicitor for Slaveski, deposed that ‘it was apparent that the most appropriate course was to make applications to set aside the orders in the proceeding rather than appeal from them’.[14]
[14]Affidavit of Nick Marcheski sworn 19 June 2017 [6].

After significant correspondence between lawyers acting for Slaveski and the Court’s Registry, on 1 June 2017, I made orders releasing senior counsel, junior counsel and the solicitor for Slaveski from previous undertakings on those persons providing certain fresh undertakings noted in the order.[15]
[15]This was facilitated by way of originating motion with no defendant in proceeding S CI 2017 02078.

During the course of that hearing, senior counsel for Slaveski said that Slaveski had given instructions to them to apply to set aside the orders of King J made 14 August 2015 on the basis that the originating motion in this proceeding had not been served in accordance with O 7 of the Supreme Court (General Civil Procedure) Rules 2005 (‘the 2005 Rules’). A directions hearing for the application referred to in the draft summons, which it was proposed to file on behalf of Slaveski, was set down for 5 June 2017 before me in the Practice Court.

On 2 June 2017, the summons was filed on behalf of Slaveski seeking the orders set out at [2] above.

As referred to in [6], at the directions hearing heard before me on 5 June 2017, counsel for Slaveski accepted the Attorney-General’s submission that Slaveski was required to first apply for leave to proceed under the Vexatious Proceedings Act 2014; and the applications were listed for hearing on 20 June 2017.

At the commencement of the hearing on 20 June 2017 counsel for Slaveski informed the Court that since the previous hearing, Slaveski was, in the opinion of his solicitor, now in need of a litigation guardian. The Attorney-General did not oppose the appointment and agreed not to seek costs against the litigation guardian personally. The matter was stood down while Slaveski’s daughter signed a notice of consent to act as a litigation guardian and I made an order appointing Ms Tania Slaveski as litigation guardian of Slaveski pursuant to r 15.03(3) of the 2015 Rules.

History of other proceedings and previous contempt charges of Slaveski

On 3 August 2009, the trial of a claim for damages by Slaveski against 19 police officers in the State of Victoria, arising out of 13 incidents, commenced before Kyrou J. Slaveski was self-represented. As a result of Slaveski’s extreme behaviour during the course of the trial, on the 22^nd day of the trial (being 15 September 2009) Kyrou J adjourned the trial to 22 September 2009 to give the parties an opportunity to prepare their submissions on the future conduct of the trial.

On 22 September 2009, Kyrou J further adjourned the trial to 1 February 2010 to allow Slaveski to submit to a consensual independent psychiatric assessment.[16]
[16]Slaveski v Victoria (2009) 25 VR 160.

On 14 December 2009, Kyrou J considered the psychiatric opinions of Dr Sullivan and Dr Farnbach who both opined that Slaveski’s psychiatric illnesses made him incapable of managing his affairs in relation to that proceeding.[17] After detailed consideration, Kyrou J ordered that Mrs Slaveska be appointed as the litigation guardian for Slaveski.
[17]Slaveski v Victoria (2009) 25 VR 160 at 176, 178–9 [10]–[12].

On 1 October 2010, after the trial had occupied 115 sitting days and generated 16,166 pages of transcript, Kyrou J dismissed claims with respect to 12 out of 13 incidents; but upheld claims for trespass arising out of an incident on 13 December 2005 and awarded total damages of $28,300.[18]
[18]Slaveski v Victoria [2010] VSC 441 [5].

On 10 December 2010, Kyrou J formally entered judgment for the plaintiff in the sum of $28,300 plus interest, but made costs orders which were substantially adverse to Slaveski and Mrs Slaveska.[19]
[19]Slaveski v Victoria [2010] VSC 569.

Proceedings for contempt were subsequently brought against Slaveski arising out of his conduct in the trial before Kyrou J. On 11 November 2011, after undertaking an inquiry prior to the hearing of contempt charges, Whelan J, relying upon a report of the psychiatrist, Dr Sullivan, dated 9 November 2011, ruled that Slaveski was fit to plead.[20]
[20]R v Slaveski (contempt) [2011] VSC 643 [9].

On 13 December 2011, after a trial running for eight days, Whelan J found Slaveski guilty of contempt of court.[21]
[21]Ibid.

On 20 January 2012, Whelan J sentenced Slaveski to a term of imprisonment of two months and ordered a further one month’s imprisonment in default of the payment of costs.[22] In determining the sentence, Whelan J took into account, among other things, Slaveski’s psychiatric condition and considered a medical certificate from his general practitioner, Dr Duggal, and a psychiatric report from Dr Farnbach.[23]
[22]R v Slaveski (Sentence) [2012] VSC 7.
[23]Ibid [6].

On 20 March 2012, the Court of Appeal determined that there was no merit in Slaveski’s appeal against his conviction by Whelan J and dismissed his application for leave to reinstate the appeal against conviction.[24] The appeal against sentence was allowed, but the same sentence was imposed, except for the penalty of one month’s imprisonment in default of the payment of costs.[25]
[24]On 2 February 2012, counsel appearing pro bono for Slaveski abandoned the application for leave to appeal the contempt conviction.
[25]Slaveski v The Queen (2012) 40 VR 1 (Warren CJ, Nettle and Redlich JJA).

On 1 February 2013, the Court of Appeal[26] dismissed Slaveski’s appeal against the decision of Kyrou J on 1 October 2010 for want of prosecution. The reasons for decision were not published, but the High Court, in dismissing an application for special leave to appeal on 5 June 2013, noted as follows:

On 25 November 2011, the Court of Appeal of the Supreme Court of Victoria (Nettle and Harper JJA) ordered the applicant’s litigation guardian to give security for the respondents’ costs of the appeal in the sum of $30,000 by 25 December 2011. On 20 December 2011, the Court of Appeal (Nettle and Ashley JJA) ordered that the appeal be stayed pending payment of the security ordered, accepting that the applicant was making all reasonable endeavours to comply with the security for costs orders.
On 1 February 2013, the Court of Appeal (Neave JA and Vickery AJA) dismissed the appeal for want of prosecution. The Court noted that over a year had elapsed since the orders requiring security for costs were made and that the applicant’s litigation guardian had failed to provide any part of the security in that time. The applicant’s litigation guardian had been advised by the Judicial Registrar that the matter may be struck out if the security for costs orders were not complied with. The Court held that the applicant’s conduct in sending bank cheques each in the amount of $5,000 to five judges and the Court’s Chief Executive Officer was bizarre and done in flagrant disregard of the terms of the orders. The Court considered that the applicant’s prospects of success were very poor and that it would be unjust to the respondents if the matter were to remain unresolved indefinitely.[27]

Having recited that background, Slaveski’s application for special leave was dismissed on the basis that ‘an appeal to this Court would enjoy no prospects of success’.[28]

[26](Neave JA and Vickery AJA).

[27]Slaveski v Victoria [2013] HCASL 84 [2]–[3] (Kiefel and Keane JJ).

[28]Ibid [4].

On 25 February 2014, Williams J declared Slaveski to be a vexatious litigant under s 21 of the Supreme Court Act 1986, after considering 19 proceedings brought by Slaveski. The hearing of the application proceeded over seven sitting days commencing on 20 June 2013 and was completed on 16 September 2013. For the first five hearing days, Slaveski appeared without representation. During the hearing, relevantly, the following occurred:

(a)On the third sitting day, Slaveski stated that he was unfit to continue the proceeding because he was suffering from mental illness.[29] The hearing was adjourned to 14 August 2013 to allow him to obtain evidence from his treating psychiatrist as to whether or not he should be regarded as being under a disability for the purposes of r 15.01 of the 2005 Rules.
(b)On 29 August 2013, Slaveski filed a report from his treating psychiatrist, Dr Farnbach, dated 22 August 2013.
(c)On 2 September 2013, the Attorney-General submitted that the report of Dr Farnbach was insufficient to satisfy the Court that Slaveski was a person under a disability; but he did not object to Mrs Slaveska acting as Slaveski‘s ‘McKenzie friend‘. However, Mrs Slaveska declined to act in that capacity.[30]
(d)On 16 September 2013, Mr Glick QC appeared on behalf of Slaveski. Slaveski objected to the presence of security officers. Ultimately, Slaveski and Mrs Slaveska left the Court and ‘indicated via telephone that they would not return and dismissed Mr Glick QC as Slaveski’s legal representative’ (‘the Court 7 incident’).[31]
(e)Williams J permitted the application to proceed on that day in the absence of Slaveski and Mrs Slaveska. Mr Glick QC remained present and ‘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’.[32]

[29]A-G v Slaveski [2014] VSC 48 [3].

[30]Ibid [7]

[31]Ibid [13]–[15].

[32]Ibid [17].

On 23 February 2015, the Court of Appeal dismissed an application for an extension of time for leave to appeal against the orders made by Williams J.[33] Counsel appeared pro bono for Mrs Slaveska, as the next friend of Slaveski; but the application was dismissed, without adjudication on the merits, on the basis that Slaveski was not present to advance the application.[34]
[33]Slaveski v A-G [2015] VSCA 31 (Warren CJ, Ashley and Tate JJA).
[34]Ibid [52].

Email communications from Slaveski after leaving Australia

Counsel for Slaveski relied upon emails sent by Slaveski, after leaving Australia in September 2013, as supporting his contention that he left, and did not return to Australia, until January 2017, because of his paranoid delusions.

The following are extracts from such emails, which are relevant to Slaveski’s stated reason for leaving Australia, but do not include the irrelevant, extreme and outrageous claims made in the emails.[35]
[35]The extracts are reproduced in original form.

(a)By email dated 20 September 2013 at 1:41 pm to the Associate to King J Slaveski stated the following:
I have left the Country Australia as I was threatened to be killed , by the 7 to 8 P.S.O / Police with their , Fire Arms / guns and taser guns that were pointed at me in the Supreme Court in Court room 7 , after so called Judge / Justice Mrs Williams walked out of the Court Room .
…
I know that , either David Ware CEO of Supreme Court , and or Attorney General Robert Clark , and or Chief Justice of Supreme Court Warren , ORDERED the HIT on me to be Killed in the Supreme Court in Room 7 on 16 September 2013, Mrs Williams Judge just walked OUT, and let the P.S.O / Police To KILL me !
Please keep away from my Family !
…
STOP the HIT on me Please !

(b)By email at 4:27 pm on the same day to the Associate to Williams J and others, Slaveski stated that he was overseas and made statements including:
You invited me in your Court / your home , and Fire Arms Guns / and taser Guns were POITED at me and you just walked out .

(c)By email to the Department of Foreign Affairs and others on 25 September 2013 at 2:00 pm, Slaveski requested the release of the CCTV from the court hearing before Williams J and also made statements including:
Once I receive this , I like to Up – Load on the Internet / Google / You Tube , like I did the one where the Supreme Court Judges Associates are Planning Threatening / Plotting to Ventilate me / Kill me with a 38 Gun Calliber , this can be seen on the Internet / Google / You Tube under ; Supreme Court Victoria Slaveski.
15 Years of Torture ,of Victoria and Sydney Police Corruption , the Corruption / Conspiracy of the State of Victoria , and Corruption and Conspiracy of New South Wales is enough !
I told You People , if you do NOT want me to be an Australian Citizen , all you have to do is tell me / write to me and you have the Right to Revoke / Cancel my Australian Passport , but lets do it Civilly , NOT by Force , with Guns on The Streets , and NOW with Guns in The Supreme Court !
I am NOT – NOT Returning to Australia until this is ALL Resolved 100 % !

(d)By email of 27 September 2013 to the Associate to Williams J and others, Slaveski demanded the release of the CCTV footage and similarly stated that he had proposed to upload the video to ‘Internet / Google / YouTube’.
(e)By email of 5 October 2013 to the Associate to Williams J and others, he again makes reference to the Court 7 incident and asserts that ‘after the incident before Mrs Williams J, I had NO other Choice but to leave the Australian country’.
(f)By email of 15 October 2013 to the Associate to King J, Slaveski asks that King J be informed that he was in Germany and that ‘I can NOT , and will NOT come to Australia as I FEAR for my LIFE’. With respect to service, he stated he would not accept service via email and so requested that all documents be sent to the Australian Embassy in Berlin or the Australian Consulate-General in Frankfurt ‘And my German Lawyers will pick up the Documents from the Australian Ambacy’. He also stated:
I am Glad that Her Honer Judge Kings told these VGS IDIOTS , I was in court for 3, 4, 5 days since the 8 September , I think to the 16 , and they DID - NOT Serve me ,
They did NOT Serve me

(g)By email of 13 June 2014 to the Victorian Government Solicitor’s Office and others, Slaveski made statements including:
I like to be at my Hearing - Trail to Defend my Case - and to do a Counter Claim - as I was Threatened - Ploted to be KILLED by the Supreme Court Officials !
I can be on SKYPE - at a Center in Europe so I can be Presen VIA Video Link at my Hearing.

(h) By email of 22 May 2015, Slaveski made various statements including:
I am MENTALLY Sick , have NO medication since I was FORCED 1 year and 8 Month ago to leave Australia because the State of Victoria , Atorney General and Supreme Court and
…
WARNING :DO-NOT PUSH .ME .My Doctors have TOLD YOU .Mr Slaveski- does not know what he is Doing when he has NO Medication and when Pannick Attacks .
…
I miss my Children !

(i)By email of 26 July 2015 to the Associate to Williams J and others, Slaveski made statements including the following:
On Friday 24 July 2015 on my daughters telephone number [redacted] at 2 pm , , he rang and said that he is a Sen , Seargen Dirty Police man rang my daughter on his / government / police private number , and was hassling intimidating my Princes , that he has a Warrant to Execute – from some JUDGE .

Fresh medical evidence

In support of the submission that Slaveski was a person under disability within the meaning of r 15.01, counsel for Slaveski relied upon:

(a)a report from his treating doctors from Germany, Dr H Steinböck, head physician/specialist and Dr M Opgen-Rhein, physician, (‘the German doctors’); and

(b) two reports of Dr Anthony Cidoni of 25 February 2017 and 23 May 2017.[36]

[36]The 23 May 2017 report is actually dated ‘23 March 2017’ on the first page, but the report refers to the request for a supplementary report received on 18 May 2017, the footer contains the date ‘23 May 2017’, and the solicitor for Slaveski swore on 2 June 2017 that this report was received on 23 May 2017.

In late 2016, the German doctors provided a report on Slaveski who had been an involuntary psychiatric patient from 17 October 2016 to 16 December 2016 (pursuant to an accommodation order of the District Court of Munich). The report noted as follows:

(a)There had been a large number of psychiatric diagnoses of Slaveski in the past.
(b)Slaveski had regularly used benzodiazepines for 15 years.
(c)As part of his treatment he was progressively withdrawn from benzodiazepines with some withdrawal symptoms.
(d)Slaveski was diagnosed with delusional disorder.[37]
(e)Slaveski consented to being treated with the antipsychotic medication, Risperidone, which was administered with no significant side effects.
(f)Under the antipsychotic medication, the psychopathological abnormalities, including the paranoid-like thoughts, ‘declin[ed] well’.[38]
(g)The German doctors strongly recommended the continuation of antipsychotic therapy.

[37]In the translated report it was referred to as ‘delicate disturbance’. However Dr Cidoni stated this was an incorrect translation and ICD 10 Code F22.0 refers to delusional disorder.

[38]As translated.

In the report from Dr Cidoni dated 23 February 2017, he noted that he had examined Slaveski at the request of Slaveski’s solicitors; and was requested to consider the following questions:

(a)whether a defence of mental impairment would have been applicable in this matter;
(b)whether the medication or lack thereof had an impact on Slaveski’s mental health;
(c)the appropriateness of the medication that Slaveski was prescribed; and
(d)the consequences of the long term use of the medication that Slaveski was prescribed.

In summary, Dr Cidoni reported as follows:

(a)He recorded the complex past psychiatric history which he noted included a ‘variety of diagnoses including anxiety, depression, post-traumatic stress disorder, delusional disorder, bipolar disorder and schizophrenia.’
(b)After he was admitted to a forensic clinic in Munich on 17 October 2016, he withdrew from the Benzodiazepines; and he was treated with antipsychotic medication. He was diagnosed with delusional disorder and Benzodiazepine dependence.
(c)On the examination of his mental state, Dr Cidoni noted that ‘he continued to harbor beliefs about previous conspiracy involving the courts and the police but he did not believe they [sic] was an ongoing conspiracy or threat’.

Dr Cidoni’s opinion and recommendation were as follows:

(a)He considered the ‘most likely diagnosis is a schizoaffective disorder with a longstanding history of persecutory delusions’ associated with ‘a previous history of post-traumatic stress disorder and a recent history of polysubstance abuse including alcohol and heroin.’
(b)At the time of the offences, which were the subject of the contempt charges before King J, he believed that Slaveski was ‘suffering from the delusional aspect of his condition for all of the offences.’
(c)In relation to the four offences committed from August to October 2013, he considered that Slaveski was also manic which, with his underlying delusions, would have had the effect of increasing his agitation and disinhibiting his behaviour.
(d)He believed his antipsychotic treatment Risperidone should be reinstituted.
(e)In summary, he concluded as follows:
Mr Slaveski’s conduct primarily arose as a result of Mr Slaveski’s persecutory delusions, though disorder and periods of elevated mood which led to impulsive, erratic and aggressive behaviour and threats.
…
[I]t is more probable than not that Mr Slaveski knew the nature but not the wrongfulness of his actions and that his acutely psychotic (and manic) states resulted in him not being able to reason with a moderate degree of sense and composure about whether the conduct was wrong.
In my opinion, a defence of mental impairment may have been a viable option in this case.

In his supplementary forensic psychiatric report of 23 May 2017, Dr Cidoni noted that he had been requested by the solicitors for Slaveski to express an opinion with respect to the following matters (which he answered as shown in italics):

QCan Mr Slaveski’s mental illness affect his interpretation and perception of events such that he perceives events like the above as serious threats to himself or his family?
AMr Slaveski’s delusions, I believe, are based at least in part on actual events, as outlined above. It is not uncommon for delusions to have an element of truth underneath them.
QCan Mr Slaveski’s mental illness affect his memory of events by way of confabulating the perceived threats as going further than they actually did?
AAs I mentioned previously, I believe that Mr Slaveski’s illness caused him to conflate the different matters and people involved in his situations including police and the courts such that he believed that there was a conspiracy and potentially more of a serious threat to himself and his family than actually existed.

Q Do Mr Slaveski’s persecutory delusions appear real to him?
AI believe that Mr Slaveski interpreted these situations within a paranoid framework which may have caused him to perceive threats as greater than they actually were or existing where they did not exist.
The nature of persecutory delusions are experienced as real so that the holder of these delusions is unable to question them. The delusions become the version of reality and this is the characteristic feature of a deluded state.

Q In the period 2013 to 2014, is it reasonably possible that:
a.Mr Slaveski was under a delusional belief that Victoria Police were in a conspiracy to kill him or his family, steal his property, or destroy his livelihood?
b.Mr Slaveski was under a delusional belief that members of court security were in a conspiracy with Victoria Police to kill him or his family, steal his property, or destroy his livelihood?
c.Mr Slaveski was under a delusional belief that members of the court staff were in a conspiracy with Victoria Police to kill him or his family, steal his property, or destroy his livelihood?
d.Mr Slaveski was under a delusional belief that members of the judiciary were in a conspiracy with Victoria Police to kill him or his family, steal his property, or destroy his livelihood?
e.Mr Slaveski was under a delusional belief that the prosecutors were trying to lure him to the Courts as part of a conspiracy to kill him?

AIn relation to the period of 2014, in my opinion, Mr Slaveski was under a delusional belief that the Victoria Police, members of court staff, members of the judiciary and prosecutors were in a conspiracy to kill him or his family, steal his property and/or destroy his livelihood.

Slaveski’s submissions

In summary, it was submitted by counsel for Slaveski that the contempt orders of King J should be set aside under r 49.02 or pursuant to the Court’s inherent jurisdiction on any one of the following bases:

(a)Slaveski had not filed an appearance and, under r 15.04 the plaintiff was prohibited from continuing the proceeding without the appointment of a litigation guardian. Accordingly, any judgment entered was voidable at the option of Slaveski.
(b)A disability under O 15 was a ‘fairly analogous concept’ to unfitness to plead and, if a trial proceeded in circumstances where a person may be unfit to plead, the trial is a nullity.[39] Accordingly, as the trial before King J proceeded against Slaveski, who was a person under disability, the appropriate remedy was that the judgment be set aside. Further, Slaveski refused to attend the trial because of his paranoid delusions; and therefore he was therefore effectively deprived of natural justice.

(c)Slaveski had defences on the merits and should be granted a rehearing under r 49.02 of the 2015 Rules.
[39]Eastman v The Queen (2000) 203 CLR 1, 22 [62] (Gaudron J).

Orders of King J voidable under r 15.04

On behalf of Slaveski, it was submitted that, at the time of the trial before King J, Slaveski was a person under disability because, as a result of his paranoid delusions, he was incapable of managing his affairs in relation to the proceeding. His disability was to be inferred from the following:

(a) Slaveski had been in receipt of a disability pension since 2006.
(b)In 2012, he was found by Whelan J to suffer from ‘mental disturbance’[40] which ‘impaired [his] ability to exercise appropriate judgment.’[41]
(c)In 2013, which was the year that this proceeding commenced, Slaveski was still appearing by way of a litigation guardian in his claim against the State of Victoria.[42]
(d)The reports of Dr Cidoni of 25 February 2017 and 23 May 2017 concluded that Slaveski was suffering from a delusional mental illness.
(e)The existence of the delusional mental illness is supported by the email from Slaveski to Mr Stephen Lee dated 5 October 2013 in which he states that, ‘NOW you want to USE Judges to get me in Court , and you Plan to Kill me;’ and King J did not question that Slaveski’s belief was genuine.

[40]R v Slaveski (Sentence) [2012] VSC 7 [12].

[41]Ibid [13].

[42]Slaveski v Victoria [2013] VSC 76 (McMillan J).

It was further submitted that, in circumstances where judgment is entered against a defendant suffering from a disability, without the appointment of a litigation guardian,[43] on the authority of John v John and Goff,[44] any judgment obtained is voidable at the option of the defendant.
[43]In contravention of r 15.04 of the 2005 Rules.
[44][1965] 2 WLR 714.

In response to the Attorney-General’s submission that r 15.04 of the 2005 Rules was inapplicable (because King J dispensed with the requirement to file an appearance under r 45.05 of the 2005 Rules), it was submitted that such a gap in the rules would have been unintended and the Court should exercise its inherent power to ‘fill that gap’.

Orders of King J voidable as akin to proceeding against an accused who was unfit to plead; and akin to a denial of natural justice

In support of the submission that the Court should set aside a judgment in circumstances where the trial had proceeded against a person under disability, counsel for Slaveski argued:

(a)if a trial proceeded in circumstances where a person may be unfit to plead, the trial would be a nullity and the conviction should be set aside;[45]
(b)disability under O 15; and fitness to plead were ‘fairly analogous concepts’; and therefore
(c)as the trial before King J proceeded against Slaveski, who was a person under disability, it was akin to proceeding against a person who may not have been fit to plead and stand trial;[46] and accordingly, there was no proper trial and the trial is a nullity.[47]

[45]Eastman v The Queen (2000) 203 CLR 1, 22 [62] (Gaudron J).

[46]Ibid 106 [319] (Hayne J), 132 [399], 134 [405] (Callinan J).

[47]Ibid 22 [62] (Gaudron J).

Further, it was submitted on behalf of Slaveski that the evidence established that the reason that he did not attend was that he was suffering from a paranoid fear that he would be killed if he returned to defend the proceeding. Because Slaveski believed the delusional fears to be real, there was, in effect, a failure to afford natural justice. It was submitted that his refusal to attend based on his delusional fears was ‘so close to a failure to afford natural justice as to be a species of it or so analogous’.

Accordingly, it was submitted that King J’s decision to proceed in his absence was akin to a failure to observe the rules of natural justice; and the judgment was a nullity, which could be set aside by the trial division of this court.[48]
[48]Commonwealth v Davis Samuel Pty Ltd [No 11] [2017] ACTSC 2 [99]–[101], [104]–[107] (Refshauge ACJ); approved in Bodycorp Repairers Pty Ltd v Oakley Thompson & Co Pty Ltd [2017] VSCA 22 [84] (Warren CJ, Tate and McLeish JJA).

It was conceded that there was no authority for the propositions referred to in paragraphs [56(b)] and [57] above. However, it was submitted that both instances were similar to proceeding against a person with a disability (without the appointment of a litigation guardian) and, therefore, on the authority of John v John and Goff,[49] any judgment obtained was voidable at the option of the respondent.
[49][1965] 2 WLR 714.

Defence on the merits

In support of the submission for a rehearing, it was submitted that Slaveski had defences on the merits for the following reasons:

(a)Mens rea was a necessary element of the offence and Slaveski’s delusional beliefs make it at least arguable that he was not threatening the judges or other court officials in their official capacity. In Gregory v Phillip Morris Ltd,[50] Gray J found that:
In a case of alleged contempt of court involving intimidation of a witness, it must be proved beyond reasonable doubt that the alleged contemnor had some appreciation that the person threatened was a potential witness and had some intention to dissuade the potential witness from giving evidence … .[51]

(b)The actus of the contempt was the sending of emails and many of these were from overseas. It was submitted that it was arguable that conduct, which occurred overseas, could not constitute a contempt in Victoria.[52]
[50](1987) 74 ALR 300.
[51]Ibid 308.
[52]Mikitasov v Collins (Unreported, High Court of New Zealand, Courtney J, 11 August 2010) [36].

Attorney-General’s Submissions

Counsel for the Attorney-General submitted as follows:

(a) Contempt proceedings are essentially criminal in nature.
(b)Section 274 of the Criminal Procedure Act 2009 provides that a person convicted of an offence by an originating court may appeal to the Court of Appeal by leave.
(c)Section 3 of the Criminal Procedure Act 2009 includes in the definition of ‘originating court’ the Trial Division of the Supreme Court in its originating jurisdiction; and defines ‘original jurisdiction’ as including, relevantly, a proceeding for contempt of court.
(d)Accordingly, any appeal must be in accordance with the Criminal Procedure Act 2009.[53]

[53]Allen v The Queen (2013) 36 VR 565, 569 [17] (Priest JA, with whom Maxwell P and Weinberg JA agreed).

As contempt proceedings are to be conducted as closely as possible to a criminal proceeding,[54] a number of the 2015 Rules, such as judgments in default of an appearance or the serving of interrogatories, were inapplicable. It was submitted that similarly r 49.02 was inapplicable to contempt proceedings. In particular, the power under r 49.02 is predicated on the mere non-attendance of a party; but, in criminal proceedings, the court does not proceed unless it is found that the accused has waived his or her right to attend.
[54]R v Slaveski(contempt) [2011] VSC 643 [13].

In those circumstances, if a convicted person wishes to challenge a decision by the trial judge to proceed in his or her absence, it was submitted that the appropriate procedure is to seek leave to appeal under the Criminal Procedure Act 2009 for the following reasons:

(a) There was a substantial difference between a judge:
(i) proceeding pursuant to r 49.02 on the basis of a party’s absence; and
(ii)a court taking ‘the drastic and exceptional step of hearing a criminal charge with criminal consequences in the absence of the accused.’

(b)The application of the 2015 Rules was subject to the exercise of the court’s discretion in the particular circumstances of a proceeding.[55]
(c)Rule 49.02 was inapplicable to contempt proceedings because ‘[t]he trial proceeded in the absence of the defendant not by reason only of the defendant absenting himself, but by reason of the court recognising that, [and] dealing with it.’
(d)The fact that r 49.02 should be found to be inapplicable, in the exercise of the court’s discretion, was supported by the statement of Digby J, in Boral Resources (Vic) Pty Ltd v Construction, Forestry, Mining and Energy Union,[56] that ‘a party charged with criminal contempt may be granted dispensation from some parts of the Rules to ensure there is no loss of relevant privileges and protection.’[57]

[55]Boral Resources (Vic) Pty Ltd v Construction, Forestry, Mining and Energy Union [2014] VSC 120 [34]–[35] (Digby J). Endorsed by the Court of Appeal in Construction, Forestry, Mining and Energy Union v Grocon Constructors (Victoria) Pty Ltd (2014) 47 VR 527, 551 [92], 639 [504] (Ashley, Redlich and Weinberg JJA).

[56]Boral Resources (Vic) Pty Ltd v Construction, Forestry, Mining and Energy Union [2014] VSC 120.

[57]Ibid [35].

On behalf of the Attorney-General, it was further submitted that, if r 49.02 was applicable, the application to extend time and to set aside the judgment should be refused for the following reasons:

(a)Slaveski failed to appear because he chose not to and therefore waived his right to attend.

(b) There has been very significant delay.
(c) There is no material demonstrating a bona fide defence.
(d)There would be prejudice to the Attorney-General arising from the effect of the passage of time on the memory of witnesses.
(e)The fact that an accused person suffers from a delusion does not mean that the person is unfit to stand trial.
(f)There is no fresh evidence with respect to disability. The evidence of Slaveski’s mental health in 2017 should not be extrapolated to establish his condition at the time of his trial in 2014.
(g)The fact that the emails were sent from overseas does not affect the fact that it is the receipt of the emails that results in them having the adverse impact on the administration of justice in the State of Victoria.
(h)King J considered the question of whether mens rea was required to be established by the prosecution and concluded as follows:
[I]t is not necessary to prove an intent to commit a contempt and … the mens rea required in respect of a contempt is proof that the person intended to do the acts which are capable of, or do, amount to contempt. In criminal terms it would be proof that the acts were conscious, voluntary and willed acts. The issue of intention is relevant to the seriousness of the charge, and the level of punishment that the contempt may attract.[58]
[58]R v Slaveski [2015] VSC 400 [88]. In so holding, her Honour referred to the cases of R v Vasiliou [2012] VSC 216 (Beach J); R v Slaveski(contempt) [2011] VSC 643 (Whelan J).

Principles to be applied on the applications

Pursuant to s 55 of the Vexatious Proceedings Act 2014, the Court may give leave to Slaveski to make this application if it is satisfied that:

(a) the proceeding is not a vexatious proceeding; and
(b) there are reasonable grounds for the proceeding.

The Attorney-General did not dispute the fact that the proceeding was not a vexatious proceeding. It was submitted, however, that there were no reasonable grounds for the proceeding.

Rule 49.02(3) of the 2015 Rules requires that an application to set aside a judgment under r 49.02 be made within 14 days after the trial. However, it was common ground that the Court had powers to extend the time under r 3.02(1) and (2) which provide as follows:

(1)The Court may extend or abridge any time fixed by these Rules or by any order fixing, extending or abridging time.
(2)The Court may extend time under paragraph (1) before or after the time expires whether or not an application for the extension is made before the time expires.

The overriding principle to be applied by the Court in considering an application for an extension of time is whether the interests of justice require an extension.[59] The recognised considerations for the purpose of determining an application for an extension in time include:

(a)       the extent of the delay;
(b)      the reason for the delay;
(c)       whether there is an arguable case; and
(d)      the extent of any prejudice to the other party.

[59]Jackamarra v Krakouer (1998) 195 CLR 516, 526–7 [29]–[30] (Gummow and Hayne JJ), 539 [66] (Kirby J) cited with approval in Jorgensen v Slater & Gordon Pty Ltd [2009] VSCA 39 [60] (Ashley JA with whom Maxwell P agreed). Also see Brygel v Stoneham (Unreported, Supreme Court of Victoria, Batt J, 4 April 1997) 4 and 14; and Vimplane Pty Ltd v Cirss [2005] VSC 45 [29] (Habersberger J). I consider that the arguably more limiting principle of ‘justice between the parties’ (see Ticco Pty Ltd v Complete Family Healthcare Services Pty Ltd [2005] VSCA 221 [11]) is not an appropriate guideline in this criminal context.

The recognised relevant considerations on an application to set aside judgment under r 49.02(2) of the 2015 Rules include, but are not limited to, the following:

(a) The reason why the party failed to appear when the case was heard.
(b)Whether there has been any delay by the absent party in launching the application for a new trial.
(c)Whether there was a bona fide issue to be tried.
(d)Whether the other party would be prejudiced by a new trial in any respect which could not be adequately compensated by a suitable award of costs and the giving of security.[60]
[60]Rosing v Ben Shemesh [1960] VR 173, 176 (Herring CJ, O’Bryan and Dean JJ) approved in Xiao Hui Ying v Perpetual Trustees Victoria Ltd [2012] VSCA 316 [39], [68] (Weinberg, Harper and Priest JJA).

Decision

For the reasons set out below, I find as follows:

(a)Rule 49.02 does apply to proceedings brought under O 75.
(b)Slaveski has failed to give an adequate explanation for the delay in making this application for an extension of time and a new trial.
(c)Slaveski has failed to give an adequate explanation for his failure to attend the trial.
(d)Slaveski has failed to establish that there is a bona fide issue to be tried or an arguable case on any of the following grounds:
(i) An entitlement to set aside the judgment of King J because of non-compliance with r 15.04.
(ii)An entitlement to set aside the judgment of King because Slaveski’s disability was akin to an unfitness to plead or he was denied natural justice.
(iii)An entitlement to set aside the judgment of King J because of a non-compliance with r 45.03.

(iv) Slaveski has a defence to the contempt charges on the merits.

Rule 49.02 does apply to contempt proceedings

I reject the submissions made on behalf of the Attorney-General for the following reasons:

(a)It is well established that contempt proceedings brought under O 75 are civil proceedings governed by the 2015 Rules. As Digby J explained in Boral Resources (Vic) Pty Ltd v Construction, Forestry, Mining and Energy Union:[61]
[61][2014] VSC 120.
In my view on the proper construction of the Rules, in particular given the terms of r 1.05 of the Rules and the location of Order 75 within the body of the Rules, a contempt proceeding initiated under Order 75 of the Rules is a proceeding in the civil jurisdiction of the Supreme Court and is governed by Chapter I of the Rules. Chapter I governs civil proceedings. This position is, however, subject to the exercise of the Court‘s discretion in relation to the application of those rules in the particular circumstances of a proceeding. This interpretation of the Rules and this characterisation of the nature of the subject proceeding are supported by the High Court‘s statements in Hinch and the Court of Appeal‘s observations in Boral Resources.
A party charged with criminal contempt may be granted dispensation from some parts of the Rules to ensure there is no loss of relevant privileges and protections. Examples of such parts of the rules include rr 29.07(2), 30.02(3) and 31.12 (Order 31 is in any event also conditioned by the requirement for consent), which deal with discovery, interrogatories and oral examination, respectively. The application of each of these rules is subject to the Court‘s discretionary power and the Court may decide not to apply such rules in an Order 75 contempt proceeding. For example, as observed by the Court of Appeal in Boral Resources, the Court‘s powers to coerce discovery pursuant to Order 29 may not apply in a way which requires an individual to incriminate himself or herself in a contempt proceeding where the contempt alleged is of a criminal character.[62]

(b)Rule 1.05(1) provides that ‘these Rules apply to every civil proceeding commenced in the [Supreme Court]’.
(c)In Construction,Forestry, Mining and Energy Union v Boral Resources (Vic) Pty Ltd v Boral Resources (Vic) Pty Ltd,[63] the High Court dismissed the appeal from the Court of Appeal and found that, on a plain reading of r 1.05(1) and O 75, ‘the contempt proceeding against the appellant is a civil proceeding to which r 29.07(2) [with respect to discovery] applies according to its tenor’.[64] The Court accepted that proceedings for contempt are essentially criminal in nature;[65] but rejected that a contempt trial was equivalent to a criminal trial, such that O 75 operated otherwise than as part of the relevant Rules according to their terms.[66]
(d)The argument on behalf of the appellant in CFMEU,[67] up to and including the appeal in the High Court, was to the effect that the fundamental principle, that an accused person cannot be compelled to assist the prosecution to discharge its onus of proof, required O 75 be read as not incorporating the discovery rules. Similarly, in Anderson v Australian Securities and Investments Commission,[68] the Queensland Court of Appeal held that, despite the fact that s 1317L of the Corporations Act 2001 (Cth) required the Court to apply the rules of evidence and procedure for civil matters in civil penalty proceedings, a defendant was not obliged to file substantive defences, in accordance with the pleading rules, because of the privilege against self-incrimination.[69] In my opinion, on no view does r 49.02 involve the loss of any ’relevant privileges and protections’[70] of the respondent to a contempt proceeding. On the contrary, the rule confers a right on a respondent in the circumstances described in the rule, and I do not consider that there is any basis upon which I should read down r 1.05(1) or O 75 of the 2015 Rules to exclude the right provided by r 49.02.
(e)Consistently with the authorities referred to above, the fact that King J, applying principles appropriate for a criminal proceeding, made a specific finding that the trial should proceed in the absence of Slaveski, does not in any way necessitate a reading of the 2015 Rules, which excludes an application under r 49.02 in contempt proceedings brought under O 75.

Slaveski has failed to give an adequate explanation for the delay in making this application for an extension of time and a new trial.

[62]Ibid [34]–[35] (citations omitted and endorsed by the Court of Appeal in Construction, Forestry, Mining and Energy Union v Grocon Constructors (Victoria) Pty Ltd (2014) 47 VR 527, 551 [92], 639 [504] (Ashley, Redlich and Weinberg JJA).

[63](2015) 256 CLR 375 (French CJ, Kiefel, Bell, Gageler, Keene and Nettle JJ) (‘CFMEU’).

[64]Ibid 381 [3] (French CJ, Kiefel, Bell, Gageler and Keane JJ).

[65]Ibid 389 [43] (French CJ, Kiefel, Bell, Gageler and Keane JJ); 393 [59] (Nettle J).

[66]Ibid 401 [84] (Nettle J).

[67](2015) 256 CLR 375.

[68][2013] 2 Qd R 401 (Holmes JA, White JA and Philip McMurdo J).

[69]Also see Reid v Howard (1995) 184 CLR 1.

[70]Boral Resources (Vic) Pty Ltd v Construction, Forestry, Mining and Energy Union [2014] VSC 120 [35] (Digby J).

In Grimshaw v Dunbar,[71] Jenkins LJ said:

I venture to think that delay in itself would not be important, but delay prejudicing the other party, or delay enabling rights of third parties to intervene, would be most material.[72]

It is significant that his Lordship was there considering a case where the application to set aside an order ejecting the applicant from his home, was being made three months out of time; and in circumstances where:
(a)the applicant had been misled by a court official as to the need to attend on the hearing date (because he had paid his rent arrears); and
(b)the application was made more than five weeks prior to when the order for ejectment became effective.

[71][1953] 1 QB 408.

[72]Ibid 415.

In this case, the delay in making the application is in excess of 21 months (between 28 August 2015 to 2 June 2017, these dates being respectively, 14 days after the sentence was imposed, and the day on which the summons was filed). Such a substantial delay gives rise to the powerful consideration in favour of the finality in litigation.[73] Although the criminal nature of a contempt proceeding may counterbalance the requirement for the Court to give effect to the overarching purpose prescribed by the Civil Procedure Act 2010,[74] even in an application for an extension of time for criminal appeals, one of the guiding principles is:

The longer the time which elapses since the expiration of the statutory period and the more the changes that have taken place in the meantime, the more exceptional will the circumstances put before the Court have to be.[75]

[73]Trkulja v Dobrijevic [2015] VSCA 281 [27] (Kyrou and Kaye JJA and Ginnane AJA).

[74]Section 7 describes the overarching purpose of the Civil Procedure Act 2010 as being ‘to facilitate the just, efficient, timely and cost-effective resolution of the real issues in dispute’.

[75]Kumar v The Queen [2014] VSCA 102 [8] (Nettle and Redlich JJA and Almond AJA) citing R v Darby (unreported, Supreme Court of Victoria, 2 May 1975) recently approved in Mueller v The Queen [2017] VSCA 132 [5] (Redlich, Weinberg and McLeish JJA).

In the context of an application to extend time to bring an appeal under the Criminal Procedure Act 2009, Redlich JA has said:

Even where the applicant demonstrates that there are substantial reasons for delay, if there has been a significant delay, the grant of an extension of time will ordinarily depend upon the applicant establishing that the decision is so attended by doubt as to render it likely that the appeal will succeed.[76]

[76]Bowling v The Queen [2013] VSCA 87 [18].

Of course, as noted above, the Court must not be distracted from the guiding principle of doing what it considers to be in the interests of justice; and the fact that the application currently under consideration relates to the liberty of Slaveski. However, one of the recognised considerations is that the applicant must give an adequate explanation for the delay.[77]
[77]Rees v County Court of Victoria [2011] VSCA 179 [9] (Tate JA, with whom Almond AJA agreed). In my opinion, nothing turns on whether the Court adopts ‘adequate’ or one of the alternative adjectives for the explanation such as ‘reasonable’ (Ticco Pty Ltd v Complete Family Health Care Services Pty Ltd [2005] VSCA 221 [15] (Hollingworth AJA, with whom Charles JA agreed)), ‘acceptable’ (Kuek v DevflanPty Ltd [2012] VSC 571 [5] (Kyrou J)) or ‘satisfactory’ (Giurina v Owners Corporation No 1579 [2013] VSC 39 [25] (McMillan J)).

In my opinion, the affidavit of the solicitor for Slaveski sworn 19 June 2017 adequately explains the delay in bringing the application from the time of Slaveski’s return to Australia on about 30 January 2017, as being the result of difficulties in obtaining relevant documentation.

However, there was no real attempt to explain the delay of over 16 months up until Slaveski’s return to Australia on about 30 January 2017. The Court was invited to infer that it was Slaveski’s paranoid delusions about the court system’s conspiracy to kill him that:

(a) caused him to abscond from Australia in September 2013; and
(b) to remain overseas until January 2017.

The evidence relied upon was as follows:

(a)The assertion in Slaveski’s emails that his decision to leave Australia was the result of the Court 7 incident.
(b)The history given to Dr Cidoni that his decision to leave Australia was the result of his paranoid fears precipitated by the Court 7 incident.

(c) The opinion of Dr Cidoni that the paranoid fears were real to Slaveski.
(d)The report of the German treating doctors noting the reduction in his paranoid symptoms, after treatment with anti-psychotic medication. In particular, it was submitted that this explained his preparedness to return to Australia in January 2017.

In my opinion, the state of the evidence about the explanation for both leaving and not returning to Australia, until January 2017, is unsatisfactory for the following reasons:

(a)Slaveski has a very long history of paranoid delusions about the police and the legal system preceding the Court 7 incident; and neither Dr Cidoni nor the German doctors specifically address whether it was the Court 7 incident, rather than a desire to avoid prosecution, which was the primary motivation for him leaving Australia after the commencement of the contempt proceeding; and not returning until January 2017. Certainly, these reports would not cause me to doubt the specific finding of King J that Slaveski ‘has absented himself prior to the service of the charges and I am satisfied that he absented himself to avoid service and attendance at his trial’.[78]
[78]See [16] above.
(b)The assertions in the emails of Slaveski, being that he left Australia because of his fears precipitated by the Court 7 incident, may be simply self-serving. The emails also indicate an understanding by Slaveski that an inability to serve him with Court documents may affect the ability to proceed against him.[79] This may also be consistent with the care taken by Mrs Slaveska to state, in her written submissions at the hearing before King J that ‘I do not have any instructions from Mr Slaveski nor am I representing him in this matter’.[80]
[79]See for example [45(f)].
[80]Document titled, ‘Submissions that could assist Her Honour Justice King’ of Mrs Slaveska, (13 August 2015) 1 (emphasis in original).
(c)Neither the German doctors nor Dr Cidoni state that the improvement in his symptoms, after the anti-psychotic treatment, enabled him to overcome his fears to return to Australia.
(d)Mr Slaveski has not filed any affidavit explaining why he left Australia and why he was able to return in January 2017. On the evidence, the principal motivations:
(i)for the decision to leave, may have been to avoid service and prosecution, as King J found; and

(ii) for the decision to return, may have been:
(A)his release from prison in Germany on or about 16 December 2016,[81] after being incarcerated from 17 October 2016;
[81]His departure from Germany in January 2017 appears to be in breach of the terms of his probation dated 16 December 2016.
(B)his realisation that his absence had not prevented his conviction and sentencing for contempt; and

(C) his loneliness and the fact that he missed his children.[82]

(e)Slaveski’s failure to file an affidavit in support of the application means that there is no adequate explanation for his failure to make an earlier application to set aside the conviction by King J in circumstances when, during his absence, applications were brought on his behalf for leave to appeal:
(i)to the Court of Appeal against the decision of Williams J declaring him a vexatious litigant;[83]
(ii)to the Court of Appeal against the conviction by King J in this proceeding;[84]
(iii)to the High Court against the Court of Appeal decision, referred to in (ii) above.[85]
[82]As referred to in the submissions of Mrs Slaveska (13 August 2015) [18], [21].
[83]Slaveski v A-G [2015] VSCA 31 (Warren CJ, Ashley and Tate JJA).
[84]Slaveski v The Queen [2015] VSCA 264 (Priest JA and Croucher AJA).
[85]Slaveski v The Queen [2016] HCASL 41.

Slaveski has failed to give an adequate explanation for his failure to attend the trial.

There is no issue that Slaveski was aware of the hearing before King J and deliberately did not attend. Where a party has deliberately failed to attend a hearing, a court ‘will rarely set aside a judgment which has been properly entered’, pursuant to r 49.02.[86]
[86]Adams v Cronin (Unreported, Supreme Court of Victoria Court of Appeal, Winneke ACJ, Phillips and Hayne JJA, 6 September 1996) 7.

There is authority for the proposition that medical conditions are ‘within the rare exception spoken of by Winneke ACJ’.[87]
[87]Brygel v Stoneham (Unreported, Supreme Court of Victoria, Batt J, 4 April 1997) 9.

In Brygel v Stoneham,[88] Batt J set aside a judgment entered in the absence of the applicant on the basis that the applicant was unable to attend on the day of the hearing because of a migraine, of which he notified the Court on the day of the hearing. The application was made 29 days after the judgment;[89] and his Honour explained that:

one’s knowledge of migraine enables one to understand the possibility that a person suffering a bout of a particular illness may find himself or herself unable to make decisions, to concentrate or even to communicate coherently in a way in which in hindsight the person can have confidence.[90]

[88]Ibid.

[89]The application for an extension of time was not opposed.

[90]Brygel v Stoneham (Unreported, Supreme Court of Victoria, Batt J, 4 April 1997) 12.

In Vimplane Pty Ltd v Cirss,[91] Habersberger J dismissed an application for an extension of time to file an application for an order under r 49.02(2) on the grounds that the applicant had no defence on the merits.[92] The defendant’s summons was issued 58 days out of time and his Honour indicated that, if it served any purpose, he would have extended the time.[93] Further, he accepted that the evidence of the applicant and treating doctors established an adequate explanation, being that the applicant’s inability to attend on the hearing day was the result of a relapse of a major depressive illness that rendered her not fit to represent herself.[94]
[91][2005] VSC 45.
[92]Ibid [41].
[93]Ibid [45].
[94]Ibid [37].

However, for reasons set out above at [79], I am not satisfied, in all the circumstances of the case, that the reason for leaving Australia was his paranoid delusions, rather than a desire to avoid prosecution.

Slaveski has failed to establish that there is a bona fide issue to be tried or an arguable case
No entitlement to set aside the judgment of King J because of non-compliance with r 15.04.

Rule 15.04 provides as follows:

Where a defendant who is a person under disability does not file an appearance within the time limited, the plaintiff shall not continue the proceeding unless a person—
(a)is made litigation guardian of the defendant in accordance with Rule 15.03(6); or

(b) is appointed litigation guardian by order of the Court.

A failure to appoint a litigation guardian does not invalidate the proceeding

In my opinion, the fact that the trial proceeded without the appointment of a litigation guardian does not give Slaveski a right to set aside the judgment for the following reasons:

(a)There was no obligation under r 15.04 of the 2005 Rules to appoint a litigation guardian. Rule 15.04 is inapplicable in its terms because the application was brought under O 45 and, on 14 August 2015, King J expressly dispensed with the requirement under r 8.02 for the filing of an appearance. Accordingly, the defendant was not required to file an appearance and could not be said to have ‘not file(d) an appearance within the time limited’.
(b)I reject the submission of counsel for Slaveski that proceeding under O 45, and dispensing with the requirement for an appearance created a ‘gap’ in the rules. He cited no authority for the proposition that in such a case there was ‘inherent power’ to fill the gap; and, for the reasons set out below, it is far from clear that, assuming Slaveski to be a person under a disability, it would have been appropriate at common law for a litigation guardian to be appointed.

The principal purposes for the appointment of a litigation guardian include the following:

(a)The need for a person with legal capacity, who is capable of retaining a lawyer.
(b)To provide instructions to lawyers for the conduct and possible settlement of the proceedings.
(c)To advise and guide the party in determining the best course in the proceedings.
(d)To be liable for the costs of an infant, if the case fails.[95]

[95]Dey v Victorian Railway Commissioners (1949) 78 CLR 62, 83 (Latham CJ), 100 (Dixon J); Haines v Leves (1987) 8 NSWLR 442, 463 (Kirby P).

However, contempt proceedings are in the nature of criminal proceedings. As Street CJ said in Haines v Leves:[96]

In the criminal field it is commonplace for an infant accused person to participate by directly instructing solicitors and counsel. Likewise on appeal it is commonplace for an appeal to be instituted by an infant personally and be carried through at the appellate hearing by the infant directly instructing solicitors and counsel or even at times by the infant appearing personally without legal representation.

[96]Haines v Leves (1987) 8 NSWLR 442, 449, 475 (Samuels JA agreeing).

As Digby J observed in Boral Resources (Vic) Pty Ltd v Construction, Forestry, Mining and Energy Union,[97] whether the Court will apply the relevant rules to a proceeding brought under O 75 will be a matter for the exercise of discretion of the trial judge. In determining whether a litigation guardian should be appointed to a respondent to a contempt application, the Court will undoubtedly be guided by what it considers to be in the interests of justice.[98]
[97][2014] VSC 120 [34]–[35].
[98]Myers v Nominal Defendant [1966] 1 NSWR 659, 666–7 (Isaacs J).

Given the criminal nature of this proceeding, and the function of a litigation guardian, I do not consider that the adoption of the O 45 procedure created a ‘gap’ in the 2005 Rules.[99]

No sufficient evidence that Slaveski was a ‘handicapped person’ for the purposes of this proceeding

[99]See [97]ff below.

The above discussion assumes that Slaveski was, at the relevant time, a person under a disability. Rule 15.01 defines a ‘person under a disability’ to include a handicapped person; and defines handicapped person to mean ‘a person who is incapable by reason of injury, disease, senility, illness or physical or mental infirmity of managing that person’s affairs in relation to the proceeding’.

It was submitted on behalf of Slaveski that it could readily be inferred that he was rendered a handicapped person by reason of his mental infirmity because a litigation guardian had been appointed for him:

(a) in his claim for damages against the State of Victoria before Kyrou J;[100] and
(b)in the application for a declaration that Slaveski was a vexatious litigant before Williams J.[101]

[100]Slaveski v Victoria (2009) 25 VR 160 at 176.

[101]A–G v Slaveski [2014] VSC 48 [3]–[12].

However, whether a person is incapable of managing his or her affairs in relation to the proceeding requires an inquiry as to the specific proceeding. As Kyrou J observed in Slaveski v Victoria:

There is a presumption that a person of full age is capable of managing his or her own affairs, which must include the management of litigation to which he or she is a party. The person who alleges the contrary bears the onus.
There is no universal test for determining whether a person is capable of managing his or her affairs. Lack of capacity is usually denoted by a person’s inability to understand the nature of an event or transaction when it is explained. In relation to litigation in which a person is a party, the person must be able to understand the nature of the litigation, its purpose and its possible outcomes, including the risks in costs.
The words ‘in relation to the proceeding’ in r 15.01 are important because they focus on the person’s ability to bring or defend a particular proceeding rather than on whether the person is able to manage his or her affairs generally or in relation to some other transaction. As Chadwick LJ observed in MastermanLister v Brutton & Co: ‘The test is issue specific; and, when applied to different issues, it may yield different answers.’ Accordingly, the fact that a person has been involuntarily admitted to a psychiatric facility under mental health legislation is not conclusive proof of incapacity under r 15.01, but it may be relevant to an assessment of such incapacity.
The question of incapacity in relation to litigation must be examined against the facts and subject matter of the particular litigation, the number and complexity of the issues involved and the identity, number and interests of the other parties, particularly opposing parties. A person can have the requisite capacity for one proceeding and lack it for another.[102]

[102]Slaveski v Victoria (2009) 25 VR 160 at 176, 182–3 [25]–[28] (citations omitted).

I consider it unlikely that any of the usual functions of a litigation guardian could properly be applied to the trial of a charge of contempt. A lawyer may advise a respondent as to the merits of pleading or negotiating charges; but it would be inappropriate for a litigation guardian to make the decision for the respondent. I note that in the previous contempt proceeding before Whelan J,[103] there was no consideration given to the appointment of a litigation guardian. Rather, Whelan J undertook an inquiry as to Slaveski’s fitness to plead; and, on 11 November 2011, ‘ruled he was fit to plead, relying upon a report of the psychiatrist, Dr Danny Sullivan, dated 9 November 2011’.[104] It is notable that Kyrou J also relied upon an opinion of Dr Sullivan that Slaveski was not capable of managing his affairs in relation to his claim against the State of Victoria in December 2009.[105] No medical evidence was before me addressing the issue as to whether or not Slaveski was incapable of managing his affairs in relation to the contempt proceeding before King J. The reports of Dr Cidoni concerned Slaveski’s mental state at the time of the offences and his delusional beliefs in 2014; but do not address directly the question of capacity to manage his affairs in respect of the proceeding.
[103]R v Slaveski (contempt) [2011] VSC 643.
[104]Ibid [9].
[105]Slaveski v Victoria (2009) 25 VR 160 at 176, 178–9 [10]–[11].

With respect, I consider that her Honour properly directed herself to the questions of:

(a) whether Slaveski was fit to plead; and
(b)whether there were exceptional circumstances justifying the trial proceeding in the absence of the respondent;

rather than whether he was a person under disability.
Non-compliance with r 15.04 does not render a proceeding voidable by the respondent

Further, I reject the contention of counsel for Slaveski that non-compliance with r 15.04 or generally the failure to appoint a litigation guardian makes any judgment entered voidable at the option of the respondent for the following reasons:

(a)Rule 2.01(1) specifically provides that ‘a failure to comply with these Rules is an irregularity and does not render a proceeding or any step taken, or any document, judgment or order in the proceeding, a nullity’.

(b)The proposition that the failure to appoint a litigation guardian was other than an irregularity which could be cured by the courts is contrary to well established authority in Victoria.[106]
(c)Counsel for Slaveski relied upon the decision in John v John and Goff,[107] in which it was held that a provision similar to r 15.04 rendered a decree nisi pronounced in favour of a husband in an undefended suit against his wife and a co-respondent, who was a minor, voidable rather than a nullity. However, his Honour was applying a decision of the Court of Appeal in Balloqui v Balloqui,[108] where Lord Denning MR held that non-compliance with the rule requiring the appointment of a guardian ad litem was an irregularity which could be cured by the court, under the equivalent of r 2.01 of the 2015 Rules.[109] The case does not stand for the proposition that non-compliance with the rule with respect to the appointment of a litigation guardian confers a right on a respondent to set aside a judgment.

No entitlement to set aside the judgment of King J because Slaveski’s disability was akin to an unfitness to plead or he was denied natural justice

[106]R v Danaher; Ex parte Olzer Industries Pty Ltd [1969] VR 445, 448; Clarey v Permanent Trustee Co Ltd [2005] VSCA 128 [53], [62] (Charles, Eames and Nettle JJA); Slaveski v Victoria (2009) 25 VR 160 at 176, 182 [24] (Kyrou J).

[107][1965] 2 WLR 714 (Sir Jocelyn Simon P).

[108][1964] 1 WLR 82.

[109]John v John and Goff [1965] 2 WLR 714, 717.

With respect to the issue of whether the test of unfitness to stand trial in s 6(1) of the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 was applicable to the contempt proceeding before King J, I note the following:

(a)At the application to proceed in the absence of the accused on 17 June 2015, King J said ‘one of the things that really that concerns me is, is he fit to stand trial’. Counsel for the applicant submitted that the Crimes (Mental Impairment and Unfitness to be Tried]) Act 1997 only applied to indictable offences and ‘This is not actually an indictable offence’.
(b)In the submissions filed on behalf of Mr Slaveski in this application, the above passage of the transcript is referred to and it is stated that ‘The applicant correctly submitted that the Crimes (Mental Impairment [and Unfitness to be Tried]) Act [1997] does not apply’.
(c)Section 4(1) of the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 states that ‘this Act applies only in relation to trials of indictable offences’.
(d)In John Fairfax & Sons Pty Ltd v McRae,[110] Dixon CJ, Fullagar, Kitto and Taylor JJ state that ‘[a]ll criminal contempts are indictable offences at common law.’

[110](1955) 93 CLR 351, 364.

Accordingly, it appears strongly arguable that the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 is applicable and therefore unfitness to stand trial is determined by reference to s 6(1) of the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 which provides as follows:

A person is unfit to stand trial for an offence if, because the person's mental processes are disordered or impaired, the person is or, at some time during the trial, will be—
(a) unable to understand the nature of the charge; or
(b)unable to enter a plea to the charge and to exercise the right to challenge jurors or the jury; or
(c)unable to understand the nature of the trial (namely that it is an inquiry as to whether the person committed the offence); or

(d) unable to follow the course of the trial; or
(e)unable to understand the substantial effect of any evidence that may be given in support of the prosecution; or

(f) unable to give instructions to his or her legal practitioner.

However, it is not necessary for me to finally determine this matter because it was not submitted that, in this case, a different result would follow depending on whether the Court adopted the common law or the statutory definition of unfitness to stand trial.

I consider that a comparison of the criteria under s 6(1), with the definition of a person under disability in r 15.01, requires me to reject the submissions that they are ‘in substance’ the same test; and that disability under the rule is ‘akin’ to an unfitness to plead. The difference in the tests is consistent with the fact that, in November 2009, Kyrou J found that Slaveski was a handicapped person under O 15, while in December 2011 Whelan J found that he was fit to plead; and each relied on opinions of the same psychiatrist, Dr Sullivan.

As recorded in paragraph [16] above, King J found that Slaveski was fit to plead; and none of the evidence relied upon in this application would contradict that finding.

The application before me is not one directly challenging the finding of King J that Slaveski was fit to plead. Presumably an application for leave to appeal would need to be filed for such a contention to be addressed by the Court of Appeal.

I also reject the submission that there is a bona fide issue that the paranoid delusions of Slaveski resulted in him being denied natural justice. There was no authority cited to support the proposition that, despite all of the efforts to have Slaveski attend, his absence could constitute a denial of natural justice entitling him to set aside the judgment. Further, for the reasons set out in paragraph [82], in all the circumstances, I do not accept that Slaveski has established that his absence from Court was the result of his paranoid delusions rather than his determination to avoid the contempt proceedings.

No entitlement to set aside the judgment of King J because of a non-compliance with r 45.03 of the 2005 Rules

Rule 45.03 of the 2005 Rules provided as follows:

(1)Where a defendant fails to file an appearance within the time limited, the Court may—
(a)on application made by the plaintiff without notice to the defendant; and
(b)on proof of service of the originating motion and of the failure—

give judgment against that defendant for the relief or remedy sought in the originating motion.
(2)For the purpose of these Rules, the hearing of the application is the trial of the proceeding.
(3)Except for the purpose of proof of service of the originating motion and of the failure of the defendant to appear, the plaintiff shall not, unless the Court otherwise orders, use in evidence on the application any affidavit made by the plaintiff or on the plaintiff’s behalf and not served on the defendant with the originating motion.

It was submitted on behalf of Slaveski that most if not all of the affidavits, which were relied upon by the Attorney-General before King J, were not served with the originating motion and therefore cannot be relied upon pursuant to r 45.03(3). Accordingly, it was submitted that the order should be set aside.[111]
[111]This submission was made in the written submissions filed on behalf of Slaveski but was not the subject of oral submissions. At the end of the second day of submissions, senior counsel for the Attorney-General said that ‘I understand also that the 45.03 point is not pressed’. Counsel for Slaveski stated ‘Sorry, I have no instructions with all those, that they are … I have no further submissions on them’.

Counsel for the Attorney-General submitted that the contention must fail for the following reasons:

(a)In its terms, r 45.03 only applies if a defendant fails to file an appearance within the time limited; and as this proceeding was brought by way of special proceeding under r 45.05, there was never a requirement on the defendant to serve an appearance.
(b)Judgment was not entered on application made by the plaintiff pursuant to r 45.03(a).

I reject the submission made on behalf of Slaveski for the reasons submitted by the Attorney-General. In addition, it was not disputed that all of the affidavits relied upon by the Attorney-General were served in accordance with the substituted service orders made by King J. Accordingly, even if r 45.03 applied, service of affidavits after the service of the originating motion would be an irregularity, which could be cured under r 2.01. It would not justify the orders of King J being set aside.

No bona fide defence on the merits

I accept the submission on behalf of Slaveski that, to establish a charge of contempt of court based on threats to judicial officers and other court officials, it must be proved beyond reasonable doubt that the accused intended to direct the threats to the persons in connection with their official capacity.[112] It would be trite to say that insults directed to a person who happens to hold judicial office at a football match in connection with his or her support of the Collingwood Football Club could not, without more, constitute a contempt of court. However, I reject the submission that there is any prospect of Slaveski raising a defence on this basis. Reference to the facts of this case could leave no doubt that Slaveski was well aware of the capacity of the persons to whom he directed the relevant threats; and the fact that he was directing the threats to them in connection with their official capacities.
[112]Cf Gregory v Philip Morris Ltd (1987) 74 ALR 300, 308 (Gray J).

Further, I reject the contention of counsel for Slaveski that there is a bona fide defence, with respect to the charges relating to emails he sent from outside Australia, on the basis that a person does not commit a contempt of court in Victoria, if the correspondence, constituting the contempt, is sent from outside Australia.

In support of this decision, counsel for Slaveski relied upon the decision of the High Court of New Zealand in Mikitasov v Collins.[113] The relevant facts were as follows:

(a)The applicant sought declarations that the respondents were in contempt for failing to comply with a freezing order against the assets of the second and third respondent.
(b)In breach of the order, the second respondent paid restrained money into his bank account in the United Kingdom, from where the first respondent (who had declared himself bankrupt and moved to the United Kingdom) withdrew it and refused to repay it.

[113]Unreported, High Court of New Zealand, 11 August 2010, Courtney J.

Courtney J held as follows:

(a) The second respondent had acted in contempt.[114]
(b)The first respondent had taken deliberate steps to frustrate that order that, if the steps had occurred in New Zealand, would have constituted a contempt by a third party.
(c)As the steps had been carried out by a person, who was not the subject of a court order, outside the jurisdiction, the Court had no jurisdiction to make a finding against him.[115]

[114]Ibid [34].

[115]Ibid [36].

I reject this submission of Slaveski that a similar contention would be arguable in this case for the following reasons:

(a)In Mikitasov v Collins, the first respondent was not subject to the freezing order and his conduct occurred entirely out of the jurisdiction.
(b)The offence in this case was contempt of the Supreme Court of Victoria. Although some of the emails may have been sent from outside the jurisdiction, the effect of the the criminal conduct was experienced in Victoria; and therefore this Court has jurisdiction to hear the charge.[116]
(c)This is not a case where the Court could be said to have exercised ‘exorbitant, extraterritorial jurisdiction’ by imposing ‘obligations on persons not before the court in respect of acts to be done by them abroad regarding property outside the jurisdiction’.[117]
[116]DPP v Sutcliffe [2001] VSC 43 [100] Gillard J; Ward v The Queen (1980) 142 CLR 308, 315 (Stephen J, with whom Barwick CJ, Gibbs, Mason, Aitken and Wilson JJ agreed).
[117]Babanaft International Co SA v Bassatne [1990] 1 Ch 13, 44 (Nicholls LJ).

Conclusion

Although some of my conclusions are based on the inadequacy of the material in support of the application, I consider that the fact that Slaveski is presently incarcerated could, in other circumstances, support the granting of an application for leave to file further evidence.[118] I note that the inadequacy of the material may well have been the result of the fact that originally the basis of the application to set aside judgment was, as indicated at the early directions hearings and in the written submissions, an allegation of a jurisdictional defect arising from a failure to comply with the requirements in O 7 of the 2005 Rules. This contention was not ultimately pressed; and other grounds appeared to arise even during the course of the hearing.
[118]For example, s 56 of the Vexatious Proceedings Act 2014 requires an affidavit to be filed detailing a litigation history before leave can be granted under s 55.

I propose to make final orders for the following reasons:

(a)The lack of any meritorious defence would render a further application futile because:
(i)I do not consider that Slaveski has established that he would have any prospects of successfully defending the charges on a retrial; and
(ii)it was not submitted that the sentence imposed by King J was inappropriate.

(b)If Slaveski wished to challenge the decision of King J to proceed in his absence, on the basis of the evidence before her or fresh evidence, such a challenge should properly be made to the Court of Appeal.

In the circumstances and in light of my conclusions at [70], I propose to refuse leave pursuant to s 55 of the Vexatious Proceedings Act 2014 to commence proceedings to extend time as necessary and set aside the orders of King J made on 14 August 2015 on the basis that there are no reasonable grounds for the proceeding.

I therefore propose to dismiss the summons.

[2017] VSC 526

5 SEPTEMBER 2017