Slaveska v Elenchevski
[2013] VSCA 283
•9 October 2013
SUPREME COURT OF VICTORIA
COURT OF APPEAL
S APCI 2012 0071
| STOJANKA SLAVESKA | Appellant |
| V | |
| DRAGON ELENCHEVSKI | Respondent |
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| JUDGES | WARREN CJ, NEAVE and PRIEST JJA |
| WHERE HELD | MELBOURNE |
| DATE OF HEARING | 24 September 2013 |
| DATE OF JUDGMENT | 9 October 2013 |
| MEDIUM NEUTRAL CITATION | [2013] VSCA 283 |
| JUDGMENT APPEALED FROM | Slaveska v Elenchevski [2012] VCC 311 |
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CIVIL PRACTICE AND PROCEDURE – Appeal against orders striking out proceedings for want of prosecution and under rules 23.01, 23.02 and 23.03 of the County Court Civil Procedure Rules 2008 – Application for an extension of time in order to rely on a notice of appeal against costs orders imposed below – No real prospect of success – Appellant failed to particularise damages – Appellant failed to reply to defences raised – Appellant caused inordinate delay – Appeal dismissed – Application refused.
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| Appearances: | Counsel | Solicitors |
| For the Appellant | In person | |
| For the Respondent | Mr A Sandbach | Flitner & Co |
WARREN CJ:
I have had the benefit of reading in draft form the reasons for judgment of Neave JA. I agree with her Honour, for the reasons that she gives, that the appeal should be dismissed and the application refused.
NEAVE JA:
This is an appeal by Mrs Stojanka Slaveska (‘the appellant’) against orders of Judge Anderson[1] made on 28 March 2012, striking out proceedings initiated by her against the respondent, Dragan Elenchevski, for want of prosecution.[2]
[1][2012] VCC 311 (‘Reasons’).
[2]Reasons [41], the judge considered that the material filed by the plaintiff went nowhere near to providing a basis for her response to the defences raised.
The appellant also appeals, with leave, against a costs order made against her on 9 May 2012. When leave was granted by this Court on 14 September 2012, the orders required the appellant to file and serve a notice of appeal against the costs order by 4.00pm on 21 September 2012. Since that was not done, Mrs Slaveska also requires an extension of time in order to rely on the notice of appeal against the costs orders, which was filed on 24 September 2012.
In my opinion, both the substantive appeal and the application for an extension of time to appeal against the costs orders, should be dismissed.
Background
The background to the proceedings which the appellant initiated by Writ with a Statement of Claim filed on 13 November 2008, is carefully described in the reasons of the judge below.
The appellant’s claim arose out of a written agreement between her son Kreste Slaveski (allegedly acting as her agent) and the respondent, made on 26 March 1986, to sell her a house and land in Ohrid, Macedonia. The appellant alleges that under the agreement she was sold an area of 485 square metres enclosed by a wire fence,
that she paid the respondent a deposit of $10,000 on 26 March 1986 and that she later paid him the balance of $46,000. She travelled to Macedonia, occupied the home and replaced the wood and wire fence around the property with a concrete wall. In her statement of claim she alleges that in 2003 she became aware that the respondent had arranged for the subdivision of the land and transfer of all but 149 square metres of that property to his brother Lubin Elenchevski and in 2005 she discovered that the transfer was made pursuant to an agreement made in 1984.
In her statement of claim the appellant sought damages in the sum of $17,204.12, representing the difference between the value of the land transferred to her and the land to which she alleges she was entitled, under the contract. In the alternative, she claimed damages for a representation that the respondent held clear title to 485 square metres, which was made to induce her to enter into the agreement. The damages which she claimed were described as ‘damages for loss of use of money’, ‘damages for opportunity cost’, ‘general damages, interest and costs’ but were not otherwise particularised.
In his defence filed on 16 January 2009, the respondent pleaded that the document relied upon by the appellant was an ‘informal contract’ which did not constitute a legally binding agreement for the sale of land in the Republic of Macedonia as it did not identify any particular parcel of land or comply with the requirements of the laws of the Republic of Macedonia relating to the sale of land.[3]
[3]Somewhat inconsistently he also denied entering into an agreement for the sale of land, made in Melbourne, in 1986 or at any other time. In his further and better particulars dated 6 March 2009 he said that the 26 March document did not identify the location of the house either by address, cadastral lot number or other title details and was neither deposited in the ‘Ohrid Magistrates’ Court Archive’ or with the Institute of Geodesy in Ohrid as required by the law of the State.
He also pleaded that on 26 May 1986 he had entered into an agreement with the appellant to transfer her a two storey house located in Ohrid together with the land on which it stood amounting to a total area of 336 square metres (cadastral lot
12724(1)). He said that he had given the 149 square metres in dispute, comprised in cadastral lot 12724(2) to his brother in 1984.
In addition, he pleaded that ‘any cause of action alleged by the plaintiff in this proceeding accrued to her more than six years before the commencement of this proceeding and was and is barred by virtue of s 5 of the Limitation of Actions Act 1985’.
The appellant was involved in court proceedings in Macedonia in 2003 in which the appellant’s brother claimed the 149 square metres which the appellant alleges was included in the agreement made on 26 March 1986. The appellant initially succeeded before the Municipal Court at Ohrid in her counterclaim for the area of 149 square metres, on the basis that she had purchased and had continuously occupied the property. However, the Court of Appeal in Bitola set aside the judgment in her favour and remitted the matter for determination to the Municipal Court. The Court of Appeal held that any contract of sale relating to the additional 149 square metres was unenforceable because the additional land was public property, over which no proprietary right could be acquired, no matter how much and how long it was in usage by Mrs Slaveska. On 17 October 2006, having reconsidered the matter, the Municipal Court held that Mrs Slaveska was entitled to the house and courtyard, on a total area of 336 square metres, under a contract made in 26 May 1986, but was not entitled to the additional land. This led to the proceedings in the County Court.
Legal representation
The appellant was initially represented in the County Court by Kenyons Lawyers, who filed the writ and statement of claim. Prior to their withdrawal on 17 July 2009, Kenyons Lawyers, completed the following interlocutory steps.
i.On 3 February 2009, the plaintiff requested further and better particulars of the defence;
ii.on 24 February 2009, the defendant requested further and better particulars of the Statement of Claim;
iii.on 6 March 2009, the defendant provided further and better particulars of the defence;
iv.on 30 March 2009, the plaintiff provided further and better particulars of the Statement of Claim;
v.on 3 April 2009, the defendant swore an affidavit of documents;
vi. on 9 April 2009, the plaintiff swore an affidavit of documents;
vii. on 16 July 2009, the plaintiff swore a second affidavit of documents;
viii. on 27 May 2009, a mediation was conducted. [4]
[4][2012] VCC 311, [7].
A trial date was fixed for 29 July 2009, but was vacated on the application of the appellant because she needed time to obtain a report from a handwriting expert in response to the respondent’s denial that it was his signature on the March agreement. She also wanted to obtain the file of the Macedonian court proceedings. Kenyons Lawyers withdrew as Mrs Slaveska’s solicitors on 17 July 2009. The trial was then fixed for 18 February 2010.
Following Kenyons Lawyers withdrawal, Mrs Slaveska’s family attempted to organise legal representation for her. Although Mrs Slaveska obtained legal advice from various practitioners, she could not find on-going representation[5] and there were disputes between her and her family members and various lawyers.[6] Because Mrs Slaveska has limited English, family members have assisted her. Her son Ljupco sought to represent her at the trial on 18 February 2010, but Judge Shelton refused to permit him to do so and ordered that she must take immediate steps to engage other lawyers.[7] His Honour ordered that costs thrown away as a consequence of the adjournment be paid by Mrs Slaveska. The trial was adjourned and re-fixed for 23 June 2010. The 23 June 2010 date was vacated because there was no judge available to hear the trial on that day and a new date of 16 November 2010 was fixed.
[5]Affidavit of Kreste Slaveski, sworn on 10 February 2010; Affidavit of Ljupco Slaveski filed on 17 February 2010; Affidavit of Stojanka Slaveska, sworn on 24 September 2010.
[6]Mr Ljupco Slaveski alleged that Fernandez & Johnson agreed to act for Mrs Slaveska but withdrew shortly before the trial date of 18 February 2010, and referred her to Wilmoth Field Warne Lawyers, who declined to represent her at the trial. In her affidavit of 26 November 2010 Mrs Slaveska set out the details of a dispute with Fernandez & Johnson.
[7]Order made 18 February 2010.
On 24 September 2012 Mrs Slaveska filed an affidavit seeking leave for her daughter-in-law Snezana Slaveska (hereafter described as ‘Snezana’ to avoid confusion with the appellant) to represent her on 16 November 2010. In reasons delivered on 8 October 2010, Judge Anderson refused leave for Snezana to represent the appellant, because:
I could have no confidence that Mrs Slaveska understands the nature of the task required of a person accepting responsibility to conduct a proceeding on behalf of the plaintiff or that the plaintiff’s interests would be well‑served by permitting her daughter‑in-law to conduct the proceeding at trial.[8]
[8][2012] VCC 311, [46].
In his 28 March 2012 reasons for striking out the proceedings the judge described what happened next.
By order made 8 October 2010, the trial date of 16 November 2010 was vacated. In addition, I ordered that the plaintiff, by 4 November 2010, provide particulars of:
a.the damages claimed in paragraphs B, C and D of the relief sought in the Statement of Claim;
b. the allegations of fraud.
On 5 November 2010, the time for compliance with the order was extended to 18 November 2010. By an order made 21 February 2011, after vacating the trial date of 28 February 2011, I ordered that the plaintiff, by 6 October 2011, provide the particulars previously ordered on 8 October 2010. To date, there has been no compliance with the orders.[9]
[9][2012] VCC 311, [12]–[13].
By summons filed on 18 January 2012 the respondent sought dismissal of the proceedings:
(a) pursuant to Rule 23.03, on the ground that ‘the defendant has a good defence on the merits’;
(b) for want of prosecution;
(c) pursuant to Rule 24.02 (1)(a) following the plaintiff’s failure to comply with an order dated 21 February 2011 requiring the plaintiff to provide particulars of the damages claimed in the statement of claim.
At a directions hearing on 3 February 2012 Judge Anderson J vacated the trial date of 6 February 2012, indicating that if necessary the trial would be relisted following the hearing of the respondent’s summons.
MA Legal briefed counsel to appeal for the appellant in the strike out proceedings, but after his Honour handed down his reasons it filed a Notice of Ceasing To Act.[10] In the hearing before this Court, Snezana Slaveska was permitted to translate what her mother‑in‑law said, but not to act as her representative.
[10]Affidavit of 8 February 2012.
The judge’s reasons
The appellant’s statement of claim did not refer to any agreement made in the May 1986 and she made no mention of this agreement in any of her later affidavits.
In his reasons for striking out the claim his Honour noted that the handwriting expert’s opinion was that the March 1986 document relied upon by the appellant had been signed by the respondent, notwithstanding his denial that he had done so and that one of the witnesses, Peter Damianopoulos had made a written statement that the defendant had written out the March 1986 agreement.
The plaintiff did not file any reply to the defence filed on 16 January 2009. As a consequence the judge noted that there was:
no pleading in response to the defendant’s allegations about:
a. the effect in Macedonian law on the agreement dated March 1986;
b.the fact of the parties entering into a further agreement in May 1986 and the effect of that agreement;
c. the plea that the claims were statute barred.[11]
[11][2012] VCC 311, [10].
His Honour considered that in the absence of any evidence relating to Macedonian law it was not possible to determine whether the March 1986 agreement was enforceable in light of the defendant’s assertions that it contained an insufficient description of the property and that it was, in any case, abandoned when the parties entered into the May 1986 agreement.
At the hearing of the application to dismiss the proceedings the appellant’s counsel submitted that under s 27 of the Limitation of Actions Act 1958 the limitation period did not begin to run against Mrs Slaveska until she discovered the respondent’s fraud in 2003. The fraud was said to be the transfer of a 149 square metre parcel of land to the defendant’s brother in 1984.
His Honour said that it was not clear whether the appellant’s allegation was that the respondent was fraudulent because at the time of the March 1986 contract he knew he had no capacity to transfer the 149 square metres to the appellant. His Honour said that he had previously drawn attention to the inadequacy of the pleading of fraud in the judgment he had delivered on 8 October 2010.
He observed that:
Insofar as the allegation of fraud is relied upon as the reason for the postponement of the limitation period …that matter is not raised presently by way of reply, although the statute of limitations defence was raised by the defence. In the circumstances, the claim as presently pleaded by the plaintiff in her Statement of Claim and her lack of response by way of reply to the defences raised by the defendant, makes it clear that her present claim would have no real prospect of success at trial.
The only basis upon which I should allow the matter to go forward is if the plaintiff were to be permitted to file and serve an Amended Statement of Claim containing appropriate particulars of the matters she raises and to file a reply pleading fraud and fraudulent concealment as reasons for postponing the operation of the Limitations of Actions Act.
The affidavit material filed on behalf of the plaintiff does not, in my view, go anywhere near far enough to providing a satisfactory basis for the articulation of the plaintiff’s claims or the basis for her response to the defences raised by the defendant. Ordinarily, the application would be dealt with on the basis of the existing pleadings, not possible pleadings that may be filed if a further opportunity were given to the plaintiff. It is, however, appropriate to examine the conduct of the plaintiff in the proceeding before determining whether the proceeding should be struck out because, at present, the plaintiff has no real prospect of success.[12]
[12][2012] VCC 311, [39]–[41].
His Honour went on to consider whether the appellant’s proceeding should be dismissed for want of prosecution. He concluded that if the proceedings continued Mrs Slaveska would require time to file an amended statement of claim, the respondent would need time to file an amended defence and the plaintiff would have to file a reply. It was likely that the parties would request particulars of the pleadings and expert reports on Macedonian law would be required. In such circumstances the very earliest a trial could be fixed would be towards the end of 2012, about four years after the writ was issued. While acknowledging that the delays had occurred because the appellant had been unable to obtain consistent legal representation, his Honour concluded that it would not be appropriate to allow more time for the filing of an amended statement of claim and defence and that the interests of justice required the claim to be dismissed. He reached that conclusion for the following reasons.
a.the plaintiff has been in default of the orders for particulars made on 8 October 2010 and 21 February 2011.
b.the Court should ordinarily assess the question of whether the defendant has a good defence on the merits on the basis of the pleadings and affidavit material currently filed.
c.the Court cannot be confident on the basis of the affidavit material that the plaintiff would be able to properly articulate and particularise a claim, and a reply to the defence, which would have a real prospect of success.
d.the shortcomings in the plaintiff’s pleadings have been apparent for a considerable time –
i.the defendant raised the May 1986 agreement, the effect of Macedonian law on the validity of that agreement and the statute of limitations defence without any response from the plaintiff.
ii.the inadequate particularisation of the plaintiff’s claim in relation to the fraud claim and the claim for damages was referred to in the reasons for judgment given 8 October 2011, and in the later court orders.
e.six trial dates have been vacated through no fault of the defendant. If the matter were to proceed, a trial would be unlikely before the end of 2012.
f.to date, the defendant has been required to bear his own costs of the proceeding despite vacated trial dates and a number of directions hearings.
g.the delays in the matter proceeding efficiently to trial have had an adverse impact on the defendant, a person of limited financial means.
h.the plaintiff must accept some responsibility for the effect her lack of adequate legal representation has had on the progress of the action and her ability to complete the necessary pre-trial steps. [13]
[13][2012] VCC 311, [57].
Grounds of Appeal
These were as follows:
(1)Stojanka Slaveska the Plaintiff/Appellant has/have her Human Rights, and Natural Justice – and being an elderly 75 years old woman having suffered a stroke, and on daily Medication and (with very little Macedonian reading and writing schooling and understanding, and very – very little of English speaking and understanding, and non of English reading and writing) should have been heard through, and should be heard through her Macedonian Interpreter.
a.Brief explanatory of the case, Judge Anderson failed to apply the correct statutory/interlocutory steps from the START in 2008, and or Judge Anderson was changing/de-railing/prolonging the case as he was going along for 4 years.
b.Judge Anderson was/is contradicting himself where he did not allow the Plaintiff to represent her-self with the help of a Macedonian Interpreter, and the help of her 3 sons, Krste, Ljupco and Branko Slaveski, and her 3 daughters in law Sneze, Violeta and Snezana Slaveski, in the County Court Case NO; CI-08-04842, and another County Court Case No; CI-11-05296 before Judge Anderson.
c.When-ever the Trail [sic] was ready to proceed on the day of the Trail [sic] – (especially one particular day) all the witnesses subpoenaed, Macedonian interpreter present, and all parties in Court Judge Anderson would order/or intervene in conspiracy with the Trail [sic] Jude, and the Trail [sic] would be aborted/stoped [sic].
d.Judge Anderson has been seen by the Plaintiffs/Appellants son Ljupco Slaveski talking to the Barrister Mr A Sandbach on the street.
e.Judge Anderson was aware for many years, and Judge Anderson had/has in his position a video/audio footage from the defendants Solicitor talking to the Plaintiffs/Appellants son Ljupco Slaveski and telling him that he is prolonging/juggling/adjourning the case so he can make money from the Defendant Elencevski.
f.The Supreme Court of Appeal His Honour Justice Nettle was also given video/audio footage from the defendants Solicitor talking to the Plaintiffs/Appellants son Ljupco Slaveski and telling him about 2 neighbours fighting in Court for many, many years about a plum tree on the fence, and also telling him that he is prolonging/juggling/adjourning, the case so he can make money from the Defendant Elencevski.
g.Plaintiff Slaveskas daughter in law Snezana A Slaveska made a written Application to the County Court on the Apr-20-2011 at 13;43 so Plaintiff Slaveska can have the Audio/transcript/video recordings from 21-Feb-2011 of the Court but Judge Anderson refused/decline to give to the Plaintiff Slaveska the Audio/transcript/video recordings of the Court, the (1) date the 21-Feb-2011 where/how 2 Passports of the Defendant, Elencevski entered County Court Room, on the 21-Feb-2011 allegations were made that there was $5,000,00 in each Passport.
h.Plaintiffs Slaveska Solicitor Mr Nick Terziovski from M A Legal went to America on the day when the JUDGEMENT was delivered, and when there was questions of COSTS, and the Plaintif [sic] S. Slaveska a 75 years old woman was left by her self again !, not speaking English, and yet Judge Anderson was urging forcefully/recommend the Plaintiff to get a Macedonian Solicitor, and when she paid $5,550,00 and she got Solicitor Mr Nick Terziovski from M A Legal went to America.
i.The Plaintiff has paid close to $50,000,00 to Solicitors, Barristers, gather/preparing evidence and other things about this case, and the Solicitors would leave in the middle of the (ocean to drown this sick on daily medication 75 years old woman))!
j.So the Slaveski Family was again called to pick up the pieces from the conspiracy, and dishonesty from the Solicitors that the Plaintiff had engaged and the Judges Anderson conspiracy and dishonesty.
k.Plaintiff Slaveskas son Ljupco Slaveski has spoken to Judge Andersons Associate, and to the Chief Judges Rozenes Associates, also to Mr Phillip Megarr from the County Court Registry, but so far orally has been refused/decline the Audio/transcript/video recordings of the 15-Feb 2012.
l.Judge Anderson is talking about in his Judgement that the Defendant/Respondent is “suffering and continues to suffer a great deal of anxiety because of the prolonging of the proceeding, that he is a pensioner, of limited means and worry a great deal about mounting of costs of this proceedings “ but the Defendant/Respondent is not saying that from the sale of that property in 28 March 1986,. He purchased 2 properties in Melbourne one to live in, and the other to “rent”.
m.But Judge Anderson is not talking about when my Father was screaming and calling Defendant/Respondant [sic] an animal in Macedonian and going off at the Defendant/Respondent in Court, and getting very upset, and his blood Pressure being over 200, that was on Friday, and after one day my Father Late Mr Dragan Slaveski died, there fore he died because of the Pressure from the Defendant/Respondent, and the manipulation/conspiracy from the Judge Anderson.
n.If the Judge Anderson saw that the case had no “real prospect of success” (as he states in his Judgement),
(i) why did he sent it to Trail the first year,
(ii)why did not he order the case be Struck out/or Dismissed (as the Barrister Mr A Sandbach was flagging it, for many, many years,
(iii)Why did not he order the Statement of Claim be Amended at the Start or with in the first or second Year.
Conclusion
In the proceedings before us Mrs Slaveska gave no reasons for her repeated failure to comply with the directions made for the conduct of the proceedings below. She also made some claims about the reasons for her failure to comply with earlier orders which cannot be substantiated. For example, in her affidavit of 26 November 2010, she deposed that she could not satisfy the costs order made by Judge Shelton, because ‘my daughter in law went to Sydney to visit my son and they were assaulted by NSW police there and the rest of the family had to attend’.
In her notice of appeal she claimed that Judge Anderson had refused to give her access to the audio/transcript/video recordings of the hearing on 15 February. The court records show otherwise. On 9 May 2012 his Honour ordered that;
The Court tapes of the hearings on 21 February 2011 (so far as it is available) on 3 February 2012, 30 April 2012 and today will be released to an authorised transcription service upon compliance by the plaintiff with the requirements of the practice note.
I note also that in her affidavit of 13 July 2009 Mrs Slaveska referred to and annexed a translation of the reasons given by the Ohrid Magistrates’ Court for holding in favour of her counterclaim, but made no reference to the fact that this decision had been set aside by the Court of Appeal. When asked about this at the hearing of the appeal she was unable to account for it, other than to say that the lower court decision had been changed because of ‘money’.
Her submissions before us amounted to repeated assertions that she had been tricked out of her money by the appellant[14], that she had suffered great injustice and that the Court should assist her.
[14]The respondent in the current proceeding.
In the absence of particulars of the fraud claim and any reply to the defence it is impossible to assess whether the appellant’s claim has any merit at all. The court documents from Macedonia appear to support the defence that under Macedonian law the March 1986 agreement did not have the effect of transferring the whole of 445 square metres to her.
In my opinion the judge could have summarily dismissed the proceeding or struck out the appellant’s pleading under rules 23.01 and 23.02 of the County Court Civil Procedure Rules 2008 and under ss 62 and 63 of the Civil Procedure Act2010, on the basis that the claim had no real prospect of success. In Lysaught Building Solutions Pty Ltd v Blanalko Pty Ltd,[15] Warren CJ and Nettle JA said:
a)the test for summary judgment under s 63 of the Civil Procedure Act 2010 is whether the respondent to the application for summary judgment has a ‘real’ as opposed to a fanciful chance of success; …
c)it should be understood, however, that the test is to some degree a more liberal test than the ‘hopeless’ or ‘bound to fail’ test essayed in General Steel and, therefore, permits of the possibility that there might be cases, yet to be identified, in which it appears that, although the respondent’s case is not hopeless or bound to fail, it does not have a real prospect of success;
d)at the same time, it must be borne in mind that the power to terminate proceedings summarily should be exercised with caution and thus should not be exercised unless it is clear that there is no real question to be tried; and that is so regardless of whether the application for summary judgment is made on the basis that the pleadings fail to disclose a reasonable cause of action (and the defect cannot be cured by amendment) or on the basis that the action is frivolous or vexatious or an abuse of process or where the application is supported by evidence.[16]
[15][2013] VSCA 158.
[16]Ibid, [35]. See also [40]–[42] (Neave JA) expressed a different view on the ‘need for caution.’
The same principles would appear to apply to an application to strike out the proceedings for want of prosecution. [17]
[17]See Lubura v Nezirevic [2013] VSCA 215, (Warren CJ, [3]).
The principles which govern the dismissal of proceedings for want of prosecution are well established.[18] In Spitfire Nominees Pty Ltd & Anor v Hall & Thompson (a firm)[19] this Court set out the principles articulated by the English Court of Appeal in Allen v Sir Alfred McAlpine & Sons Ltd[20] and approved by the decision of the House of Lords in Birkett v James.[21] These were that:
The power should be exercised only where the Court is satisfied either (1) that the default has been intentional and contumelious, e.g. disobedience to a peremptory order of the Court or conduct amounting to an abuse of the process of the Court; or (2)(a) that there has been inordinate and inexcusable delay on the part of the plaintiff or his lawyers, and (b) that such delay will give rise to a substantial risk that it is not possible to have a fair trial of the issues in the action or is such as likely to cause or to have caused serious prejudice to the defendants, either as between themselves and the plaintiffs, or between each other, or between them and a third party.[22]
[18]Berrigan v McIver [1974] VR 811; Bishopsgate Insurance Australia Ltd (in liq) v Haskins & Sells Deloitte [1999] VR 863; Spitfire Nominees Pty Ltd and Anor v Hall & Thompson (a firm) [2001] VSCA 245.
[19][2001] VSCA 245.
[20][1968] 2 QB 229.
[21][1978] AC 297.
[22][2001] VSCA 245, [10].
The judge correctly stated the principles relating to the dismissal of proceedings for want of prosecution. In my opinion he also applied them correctly to the facts in this case.
It is unfortunate that Mrs Slaveska has not had consistent legal representation, and has had to rely on family members to assist her. But despite her difficulties she had continued to breach court orders, which were intended to assist her to formulate the claim more precisely.
The appellant has not replied to the defence. Nor has she ever adequately identified the basis for her claim that the respondent acted fraudulently. Further, even if the fraud took place as she alleges, it was discovered in 2003, and she has now had ample time to particularise that claim. Although the trial date on 23 June was vacated because no judge was available, the appellant’s conduct contributed to the need to vacate the other five of trial dates, and the defendant has been prejudiced by the inordinate delay in resolving the claim and subjected to substantial costs and delays in attempting to defend the proceedings. Moreover, the events on which Mrs Slaveska relies to establish her claim to the land, or her claim of fraud, occurred more than 25 years ago. It is doubtful whether witnesses would have any reliable memory about the circumstances surrounding the making of the March and May 1986 agreements.
It is also clear that the defendant has been prejudiced by the delay and that the costs he has incurred are unlikely to be adequately recompensed by any costs order made in his favour. As his Honour noted:
There have been a number of court appearances for which, to date, the defendant has received no reimbursement for the costs he has incurred. The relevant costs orders made by the Court have been as follows:
a.17 July 2009: Any costs thrown away as a result of the vacation of the trial date and the costs of the hearing today are reserved.
b.18 February 2010: The plaintiff pay the defendant’s costs thrown away by reason of this adjournment to be taxed on Scale Defendant in default of agreement. Certify for counsel in the sum of $3,500.
c.23 June 2010: The defendant’s costs of the hearing today and the question of whether any costs were thrown away as a result of a judge not being available to commence the case today are reserved.
d.8 October 2010: The defendant’s costs are reserved. It is noted that defendant’s counsel seeks a brief fee of $1,650 and $1,000 for the attendance of his solicitor and $500 for the preparation of an affidavit. These costs, including whether they should be paid by the plaintiff and the quantum of the costs will be considered by the Court on the next occasion the matter returns to Court.
e.21 October 2010: The defendant’s costs of the application and of the application determined by Judge Anderson on 8 October 2010 will be costs in the appeal from the orders of Judge Shelton made on 18 February 2010. Certify counsel’s brief fee on each occasion at $1,650.
f.21 February 2011 The defendant’s costs are reserved. It is noted that defendant’s counsel seeks a brief fee of $1,650 and $1,000 for the attendance of his solicitor. These costs, including whether they should be paid by the plaintiff and the quantum of the costs will be considered by the Court on the next occasion the matter returns to court.
g.3 February 2012: Reserve costs.
The only order made for the payment of the defendant’s costs (on 18 February 2010 for ‘costs thrown away’, subsequently taxed on 10 September 2010 in the sum of $7,031.30) has not been paid and is the subject of appeal, and apparently a stay of execution pending the resolution of the appeal. In his affidavit sworn in support of the present summons, the defendant stated, ‘I have suffered and continue to suffer a great deal of anxiety because of the prolongation of this proceeding. I am a pensioner of limited means and worry a great deal about the mounting costs of this proceeding’.[23]
[23][2012] VCC 311, [51]–[52].
Further, the appellant has already failed to establish her claim in the Macedonian courts, although the respondent did not explicitly rely on this in his submissions. Res judicata may well apply to the Bitola Court of Appeal decision.[24] At the very least, it is likely that Mrs Slaveska would be issue estopped from relying on the March 1986 agreement as the basis for her claim, since the Bitola Court of Appeal held that the agreement to sell 445 metres was not enforceable.[25]
[24]This may perhaps depend on whether the law of the foreign jurisdiction has an equivalent doctrine precluding action being brought on a matter already subject to a foreign judgment. Telesto Investments v UBS AG [2013] NSWSC 503, [185], (Sackar J).
[25]Coeclerici Asia (Pte) Ltd v Gujarat NRE Coke Ltd [2013] FCA 882, [102]; Armacel Pty Limited v Smurfit Stone Container Corporation [2008] FCA 592, [56] –[81].
For these reasons the appeal against the decision of Judge Anderson should be dismissed. Contrary to the matters raised in the Notice of Contention most of the issues discussed above were discussed in his Honour’s reasons. It is therefore unnecessary to address them in determining this appeal.
The application for extension of time for leave to appeal against the costs orders
On 9 May 2012 the County Court judge refused an application from the respondent for indemnity costs and made the following orders instead.
1.The plaintiff must pay the defendant’s costs of the proceeding, including any reserved costs, to be taxed in default of agreement.
2.Certify counsel’s brief fee for each of the hearings on 17 July 2009, 23 June 2010, 8 October 2010, 21 October 2010 and 21 February 2011 at the sum of $1,650.
3.Stay execution on the order for costs until 30 June 2012.
4.The Court tapes of the hearings on 21 February 2011 (so far as it is available) on 3 February 2012, 30 April 2012 and today will be released to an authorised transcription service upon compliance by the plaintiff with the requirements of the practice note.
The applicant now appeals against those orders on the basis that the judge:
1. denied natural justice;
2. denied human rights;
3. denied a fair hearing;
4. denied adequate time to prepare;
5. judge was Bias;
6. violate my legal rights and medical needs.
The application for extension of time in relation to the costs orders of Anderson J was filed by Mrs Slaveska’s daughter‑in‑law, Snezana. In an email sent to the Registry on 21 November 2012 Snezana claimed that she had posted a copy of the notice of appeal in time for it to reach the Registry by 21 September 2012, but ‘the mail was around the registry sitting on a desk, also once they got it they needed my mother‑in‑law to file and give them further documents as to her financial situation which took more time’. In a later email to the Registry, Snezana also said that no prejudice could have been suffered by the defendants because 21 September 2012 was a Friday and the document was filed by the following Monday (24 September 2012). She said she did not agree with any dates before the New Year as she was going away with her family and asked that directions could be ‘just moved to after the 20 January 2013 upon my return’.
Mrs Slaveska was advised by the Registry that the grounds of appeal filed by her daughter‑in‑law on her behalf did not identify or particularise her claims that she had been denied human rights or a fair hearing and that she had not identified the basis of her claim that Anderson J was biased. Thus she would need to file and serve an amended Notice of Appeal complying with r 64.05 of the Supreme Court (Civil Procedure) Rules 2005. She did not comply with these requirements and she did not elaborate on the claims made in her putative Notice of Appeal at the oral hearing.
Although the delay in filing the Notice of Appeal was very short, I do not regard the explanation given for it as adequate. The breach of the order is consistent with Mrs Slaveska’s earlier failures to comply with orders and appears to reflect the view that time limits and other orders do not mean what they say and that the court should simply accommodate whatever demands the appellant or her family acting on her behalf may make.
Because of the shortness of the delay and its consequent lack of prejudice to the respondent I would have been inclined to grant an extension of time if there was any chance that the appeal against the costs orders would succeed. The Court can only allow the appeal if the applicant demonstrates that the judge made an error in the exercise of his discretion which satisfied the requirements of House v The King.[26] The proposed grounds of appeal do not address these requirements at all. The costs were made as a consequence of the striking out of Mrs Slaveska’s claim and in my opinion they were entirely appropriate. It would therefore be futile to grant an extension of time. Accordingly I would refuse the application.
[26](1936) 55 CLR 499.
PRIEST JA:
I agree with Neave JA.
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