Slaveska v Elenchevski
[2011] VCC 89
•21 February 2011 (Revised 22 February 2011)
| IN THE COUNTY COURT OF VICTORIA | Revised |
(Not) Restricted
AT MELBOURNE
COMMERCIAL LIST
GENERAL DIVISION
Case No. CI-08-04828
| STOJANKA SLAVESKA | Plaintiff |
| v. | |
| DRAGAN ELENCHEVSKI | Defendant |
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| JUDGE: | His Honour Judge Anderson |
| WHERE HELD: | Melbourne |
| DATE OF HEARING: | 21 February 2011 |
| DATE OF JUDGMENT: | 21 February 2011 (Revised 22 February 2011) |
| CASE MAY BE CITED AS: | Slaveska v. Elenchevski |
| MEDIUM NEUTRAL CITATION: | [2011] VCC 0089 |
REASONS FOR JUDGMENT
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| Catchwords: | Practice and procedure – Vacation of trial date – Failure by litigant without legal representation to comply with interlocutory orders. |
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| APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr L. Slaveski (the plaintiff’s son, by leave) | ||
| For the Defendant |
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| HIS HONOUR: |
1 On 8 October 2010, I vacated the trial date of 16 November 2010 and refixed the matter for hearing before myself on 28 February 2011. The order provided that the refixed trial date would be vacated unless by 4pm on 10 December 2010, a solicitor filed a notice of acting on behalf of the plaintiff or, alternative arrangements as set out in the order were made by the plaintiff to ensure that she either represented herself or that an application for her to be represented by someone else had been made by that date. The plaintiff did not comply with paragraph 4(b) of the order and, as a consequence, the trial date on 28 February 2011 is vacated.
2 It is apparent that, quite apart from this matter, there were other issues which would have made it impossible for the trial to proceed. These are:
a. the fact that an expert hand-writing expert engaged by the plaintiff has not, to date, examined two passports delivered to the Court by the defendant from which the expert could compare the signature contained on a crucial document relied upon by the plaintiff; b. the plaintiff has not provided further and better particulars of her claim as required by paragraph 5 of the order made 8 October 2010; c. the plaintiff and the defendant did not comply with the requirements of paragraph 6 of the order which required them to notify my associate of certain matters, which would have indicated whether the trial was ready to proceed. 3 The plaintiff has limited English. She has, on previous occasions, been represented either by her son, Mr Slaveski, or her daughter-in-law, Mrs Slaveska. The directions hearing today was called by me to clarify the state of the preparation in the case and particularly whether the orders made on 8 October 2010 had been complied with. Mr Slaveski sought leave to represent his mother at the hearing today. I granted that
leave. Subsequently, the defendant’s counsel, Mr Sandbach, submitted that I should revoke that leave as a result of Mr Slaveski’s behaviour in Court. I did not revoke the leave, but continued to allow Mr Slaveski to represent his mother today.
4 On 8 October 2010, I determined an application by the plaintiff that her daughter-in- law, Mrs Snezana Slaveska, conduct the trial on her behalf, commencing 16 November 2010. I refused the application and gave written reasons for my decision. On 21 October 2010, I determined an application by the plaintiff for a stay of execution of a costs order made by His Honour Judge Shelton. The plaintiff was represented by her daughter-in-law. I dismissed the plaintiff’s application and gave written reasons for my decision.
5 On 19 October 2010, the plaintiff produced to my associate the original of exhibit SS- 4 to the affidavit she swore on 13 July 2009. The purpose of producing the document was so that the it might be examined by the defendant in order that he could either
admit or deny that the signature on the document was his.
6 Subsequently, on 22 October 2010, the defendant filed an affidavit sworn that day, stating that on 21 October, he inspected the signatures on the original document produced by the plaintiff and stated that he did not admit that his signature appeared on page 2 of the original document. The filing of this affidavit brought into play paragraph 3(a) of the order made by me on 8 October 2010, and required the defendant to produce “at least two documents containing signatures of the defendant made on dates as close as possible to March 1986”. The order went on to refer to paragraph “(a)”, rather than to “(i)”, which required, as an alternative to the production of the two documents, the supply by the defendant of “at least twenty words of handwriting made as close as possible to March 1986, and three samples of the defendant’s present signature”.
7 Much of the time in Court today has been spent in considering the question of when the defendant provided the two documents containing his signatures, in compliance with paragraph 3(a)(i). Mr Sandbach said that his instructions were that the two
documents, being an Australian passport and a Yugoslavian passport were handed to my associate in open court, during the hearing on 21 October 2010. It is apparent that my associate signed a receipt for the production of the original passports to her and
dated the receipt 21 October 2010.
8 I have had the video of the hearing on 21 October 2010 played in court. At the end of the hearing on that day, after the plaintiff’s application for a stay had been determined, there was a discussion about the production of the two passports. The orders made on 8 October 2010 anticipated that the defendant would have seven days to inspect the original document relied upon by the plaintiff and a further period to provide the documents with his signatures. It is clear from the video-recording of the hearing on 21 October that, at that time, it was anticipated the defendant would carry out the preliminary steps of inspecting the document and indicating whether there was an admission or non-admission of the signature on the document, before the documents containing his signatures were supplied to the court.
9 The video of the hearing on 21 October continued to record what occurred in Court after I left the bench and before all of the parties left the Court. It does not appear, from the video, that during that period, the defendant’s solicitor produced the
documents to my associate. The defendant, his solicitor and counsel, left the court a short time before they were followed by the plaintiff and Mr and Mrs Slaveski. It is not clear when the two passports were given to my associate. It is probable that it was at some time on 21 October 2010, because that is the date written on the receipt my
associate gave the defendant’s solicitors for the documents. The receipt is in a similar
form to a receipt that she gave to the plaintiff when the plaintiff delivered to my
associate on 19 October 2010 the original copy of exhibit SS-4 to the affidavit, dated
13 July 2009.10 What is clear is that the two passports have been in the possession of my associate, probably since 21 October 2010. There was correspondence between the parties and my associate, firstly, in relation to the death of the plaintiff’s husband, and later extending the time for compliance with paragraphs 5 and 6 of my order dated 8 October 2010. There were later emails in December 2010. On 7 December 2010, Mr Slaveski, on behalf of his mother, sought a further extension of the time for compliance with orders 5 and 6 and asked specifically “whether the defendant has produced such documents as His Honour Judge Anderson ordered in paragraph 3(a), 3(i) and 3(ii), if so then we must call an expert witness in hand-writing to analyse the signature and the hand-written words”.
11 It is difficult with the lapse of time to reconstruct the events in December 2010. It appears, however, that the plaintiff was not informed that my associate had copies of the defendant’s passports which could be examined by an expert witness. It appears that no further communications were received until emails in February 2011 when Mr Slaveski wrote to my associate. All of these communications with my associate were copied to the defendant’s solicitors.
12 The email dated 16 February 2011 notes, “We have engaged forensic expert hand- writing for the trial scheduled 28 February 2011, and we have sent him money so he is booked for the trial. The forensic expert was asking me for more signatures.
Documents from the defendant but I only have sent the forensic expert copy of the original contract, dated 26 March 1986, and the sworn affidavit by the defendant on the 22 October 2010, so signatures can be compared”. Mr Slaveski informed the
court today that a hand-writing expert Mr Trevor Joyce, was engaged on 16 February
and his fees were paid that day. Mr Slaveski said that Mr Joyce was recommended
by a hand-writing expert, Ms Jane Nash, who had previously been engaged by the
plaintiff, as Ms Nash was moving interstate.13 Although these matters have taken up a good deal of the hearing time today, they are not, in my view, the most important matters which will determine how this proceeding goes forward. In giving my reasons for decision in refusing the application that the
plaintiff’s daughter-in-law, Ms Snezana Slaveska be permitted to conduct the trial on
behalf of the plaintiff, I referred to a number of matters in relation to the proceeding
which, in my view, made it appropriate for the plaintiff to be represented by lawyers in
order that her case might be properly presented. At that time, I identified a number of
aspects of the case which I considered required careful attention.14 These matters included, firstly, the need to properly particularise the relief sought by the plaintiff and, secondly, the alternative claim made on the basis of what appeared to be alleged as a fraudulent representation. In addition, it seemed apparent that
there may need to be amendments to the statement of claim to clarify the way in
which the alternative pleading was made. The defendant had raised an issue as to
the validity of the transaction relied upon by the plaintiff which seemed to me would
raise issues relating to the application of Macedonian law. None of these issues have
been addressed by the plaintiff since the hearings on 8 and 21 October 2010.15 For the defendant’s part, defendant’s counsel has, on previous occasions, foreshadowed the possibility of an application being brought for an order that the proceeding be dismissed for want of prosecution or alternatively for the summary dismissal of the plaintiff’s claim. I provided for such an application in paragraph 4(c) of the order made 8 October 201. No such application has been made by the defendant. I have included a similar order in the orders I have made today, although Mr Sandbach indicated, during the course of argument, that it is likely the defendant will see what compliance the plaintiff makes with the other orders I have made before the defendant considers whether to make the foreshadowed application.
16 Mr Slaveski informed me that his mother wished to make a trip to Macedonia and was likely to be absent from Australia between April and August 2011. After examining a draft of the orders I was considering making today, Mr Slaveski indicated that he would prefer that in respect of the orders placing obligations on his mother, that the dates for her compliance with those orders be set for after her return from Macedonia. It is anticipated, therefore, that in the next few weeks, procedures will be followed so that the plaintiff’s hand-writing expert, Mr Joyce, might examine the original passports of the defendant and report on his comparison of signatures. The other steps required in the proceeding, particularly on the part of the plaintiff, will be deferred until she returns to Australia in August 2011. I have set a trial date of 6 February 2012, although this trial date will be subject to compliance with the directions included in the order I have made today.
17 Although the Court has in place a system of communication between legal practitioners (and self-represented litigants) and judge’s associates, which generally works well in practice, that method of communication is not appropriate in this case so long as the plaintiff continues to be principally represented by her son. As has been demonstrated today, and in recent communication by Mr Slaveski with my associate, Mr Slaveski often makes inflammatory statements without any basis. To avoid any difficulty in the future, I am going to put in place a process by which all communications between the parties and the Court must be in writing, copied to the other party and made to the Manager, Client Services, of the Court.
18 I will add a further order to those I have already indicated that I will make. I will order that “In future, all communications by the parties with the Court, apart from at actual court hearings, shall be in writing, with a copy sent to the other party, which fact shall
be apparent from the face of the document and all documents must either be by letter or email addressed to the Manager, Client Services, County Court of Victoria, sent by post to 250 William Street, Melbourne or via facsimile to 8636 6051, or by email to
19 Defendant’s counsel, Mr Sandbach has sought an order for the costs of appearing today, including a brief fee of $1,650 and a further $1,000 to cover the costs of his solicitor attending court today. The hearing has proceeded from 10 o’clock until 4 o’clock. I consider that the basic reason why the trial is not proceeding next week is
the failure by the plaintiff to comply with paragraph 4(b) of my order made 8 October
2010. If I were to make an order for costs in the defendant’s favour, I would be
inclined to stay execution on those costs until the hearing and determination of the
trial or further order. I consider, however, that I should follow the same course that I
have in previous orders of reserving the defendant’s costs. I will, therefore, make an
order that “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”. I made a similar order on 8 October 2010 and on 21 October 2010, I directed
that the costs on each occasion be costs in the appeal, and I assume that those costs
have been dealt with.20 Mr Slaveski asserted that the vacation of the trial date may involve the plaintiff being liable for the costs of the handwriting expert. It is difficult to see how that could be so. Mr Joyce was apparently engaged last week and is able to immediately proceed with his work of examining the signatures on the passports and other documents and
reporting his conclusions. In any event, there is no basis for the defendant, at this
stage, having any liability for these costs.
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Certificate
I certify that these 6 pages are a true copy of the reasons for decision of His Honour Judge
Anderson delivered on 21 February 2011 (and revised on 22 February 2011).
Dated: 28 February 2011
Caroline Dawes
Associate to His Honour Judge Anderson
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