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R v Slaveski (Appln to set aside contempt orders)

R v Slaveski (Appln to set aside contempt orders)

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Case Copied 5 September 2017 77 min read

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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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2017] VSC 526
Decision Date: 5 SEPTEMBER 2017

CaseChat Overview and Summary

The Supreme Court of Victoria dealt with an application to set aside a conviction for contempt, obtained in the absence of the respondent, who had been declared a vexatious litigant. The application was brought under section 55 of the Vexatious Proceedings Act 2014, with the applicant seeking leave to extend the time to apply to set aside the orders. The respondent had deliberately not attended the trial, and there was no bona fide defence on the merits. The court considered various rules of the Supreme Court (General Civil Procedure) Rules 2005 and 2015 in its deliberations.

The court had to determine whether the Vexatious Proceedings Act 2014 applied to a person declared a vexatious litigant under section 21 of the Supreme Court Act 1986. The court also considered whether it had jurisdiction over contemptuous emails sent from outside the jurisdiction, and whether the respondent's mental health could be an adequate explanation for his failure to attend trial. The court examined whether the respondent was a "handicapped person" within the meaning of Order 15 of the Supreme Court (General Civil Procedure) Rules 2005 and whether the failure to appoint a litigation guardian invalidated the proceeding.

The court found that the Vexatious Proceedings Act 2014 applied to the respondent, who had been declared a vexatious litigant. The court held that it had jurisdiction over contemptuous emails sent from outside the jurisdiction. The court held that the respondent's mental health did not provide an adequate explanation for his failure to attend trial. The court found that the respondent was not a "handicapped person" within the meaning of Order 15 of the Supreme Court (General Civil Procedure) Rules 2005, and that the failure to appoint a litigation guardian did not invalidate the proceeding. The application to set aside the conviction for contempt was dismissed.

The court dismissed the application to set aside the conviction for contempt, and made no order as to costs.

Orders