Slaveska v Elenchevski

[2010] VCC 1383

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:	8 October 2010
DATE OF JUDGMENT:	8 October 2010 (revised 12 October 2010)
CASE MAY BE CITED AS:	Slaveska v. Elenchevski
MEDIUM NEUTRAL CITATION:	[2010] VCC 1383

REASONS FOR JUDGMENT

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Catchwords:  Practice and procedure – Unrepresented litigant – Leave sought for a
lay advocate to conduct the trial on behalf of the plaintiff – Complex
litigation presently beyond the capacity of the proposed advocate –
Opposition by the defendant to the proposed representation –
Application refused – Skrijel v Mengler [2003] VSC 128 (Nettle J.) and
Apostolou v Commissioner of State Revenue [2008] VSC 332 (Mandie
J.) applied.

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APPEARANCES: Counsel Solicitors

For the Plaintiff	Ms Snezana Slaveska (the plaintiff’s daughter-in-law, by leave)
For the Defendant	Mr A. Sandbach Novatsis & Alexander
HIS HONOUR:

1           The trial of this proceeding has been set down for hearing commencing 16 November 2010. There are three issues which I must decide today:

a.	Whether Mrs Snezana Slaveska should conduct the proceeding on behalf of her mother-in-law, the plaintiff, at the trial;
b.	Whether the trial should go ahead on 16 November 2010, and what should be the future course of the proceeding;
c.	Whether a costs order made in the defendant’s favour by His Honour Judge Shelton on 18 February 2010 and taxed by Registrar Deviny on 10 September 2010 should be stayed.

2

that stage, she was represented by solicitors. Those solicitors were permitted to
withdraw in July 2009. Since that time, the plaintiff has not been represented by
solicitors, save for a short period prior to a refixed trial date on 18 February 2010. The

The proceeding was commenced by the plaintiff by writ issued 10 November 2008. At February 2010; 23 June 2010 and 16 November 2010.

3           The plaintiff is 74 years of age. She came to Australia from Macedonia. She had only a basic education in Macedonia and her knowledge of the English language is limited. She is in poor health, having suffered a stroke in about 2000 or 2001. She does not,

in my judgment, have the capacity or skills necessary to represent herself in this
proceeding.

4           I gave the plaintiff’s daughter-in-law, Mrs Snezana Slaveska leave to represent the plaintiff upon the present application. Mrs Slaveska asserted that the plaintiff’s claim was straightforward and arose from a simple set of facts. The plaintiff alleges that on 26 March 1986 in Melbourne, the defendant sold to her a property in Macedonia comprising 485 square metres. At a later date, the plaintiff says, the defendant asserted that the property sale only related to 336 square metres and that 149 square metres had earlier been transferred to his brother. The brother has exercised self- help and has removed a boundary wall and erected a fence enclosing the disputed area of 149 square metres as part of the adjoining property owned by him.

5           In the proceeding, the plaintiff seeks to claim the sum of $17,204.12, representing the proportion of the original purchase price of $56,000 that the 149 square metres bears to the total area of 485 square metres the plaintiff thought she was purchasing. In

addition, the plaintiff claims damages for loss of use of money, damages for
opportunity cost, general damages and other relief. No particulars have been
provided of the relief sought other than the sum of $17,204.12.

6           Apart from reliance upon the agreement said to be reached between the parties in March 1986, the plaintiff also relies on an alternative claim, which appears to be a contractual claim based upon what was alleged to be a fraudulent representation about the size of the property. In discussion, during the course of the hearing, it

became apparent that the fraudulent act relied upon has not been pleaded. It is
essentially that, in 1984, the defendant had agreed to transfer a portion of the
property comprising 485 square metres to his brother and therefore, he was in no
position to represent that he had the capacity to transfer the full area to the plaintiff in
1986.

7           In his defence, the defendant denied the agreement relied upon by the plaintiff in March 1986, although he did admit that an informal agreement was reached with the plaintiff at that time, but said that that informal agreement was not effective for the purpose of transferring to the plaintiff the property comprising 485 square metres. Defendant’s counsel, Mr Sandbach informed me that his client denies having signed the written document relied upon by the plaintiff as constituting the formal agreement in March 1986.

8           It appears that, following the arrangement between the parties in March 1986, (whether it was a formal or informal agreement or related to any specific property or area), there was a transfer of possession of a property in Macedonia to the plaintiff, and the transfer was recorded in official land registry or municipal records. Subsequently there have been two proceedings in the local or Magistrates’ Court in the relevant area in Macedonia to determine the rights of the parties to the disputed portion of the land. The plaintiff, in an earlier affidavit, sworn 13 July 2009, exhibited a decision of the Municipal Court in Ohrid on 21 January 2005 by Judge Rue Salieski which appeared to recognise the right of the present plaintiff to the disputed property. The plaintiff also exhibited to the affidavit, a later decision of the same judicial officer, there described as a Magistrate in the Ohrid Magistrates’ Court on 17 October 2006, where the decision seemed to go in favour of the present defendant. The plaintiff suggested that the later decision may not be valid as it had not been properly translated or certified.

9 March 1986 under Macedonian law and has further pleaded that the causes of action
relied upon by the plaintiff are statute barred. The statement of claim filed with the
writ, and the defence filed in January 2009 have not been amended or particularised.
During the hearing, I discussed the issues in the case with Mrs Slaveska. It seemed
to me that Mrs Slaveska had little real understanding of the factual and legal issues in

The defendant has raised the issue of the effectiveness of the alleged agreement in proceeding is, in my judgment, a complex dispute not made easier by the fact that it is founded on events which occurred about 24 years ago.

10         The critical document relied upon by the plaintiff (the March 1986 agreement) is currently disputed by the defendant. A previous attempt was made by the plaintiff to seek expert handwriting evidence to try to establish the validity of a signature on the document alleged to be that of the defendant. The expert engaged by the plaintiff was unable to complete her task because she did not have access to samples of the defendant’s admitted signature. The handwriting expert’s report was the subject of discussion in Court on 23 June 2010. An order was made by me that day, in an attempt to obtain a copy of the report of the handwriting expert which the plaintiff did not have at that time. Since then, nothing further has been done in relation to that issue, although Mrs Slaveska on behalf of the plaintiff has today made application for an order requiring the defendant to provide samples of his signature so that an expert can again be engaged.

11         This is, however, only one of the many issues which require attention before the trial of the proceeding could take place. The other matters discussed during the hearing today include:

a.	the absence of particulars of the relief sought by the plaintiff apart from the claim for $17,204.12. Mrs Slaveska suggested, during submissions, that the plaintiff’s previous solicitors had said that the damages for loss of use of money may be in the order of $150,000, although she was presently unable to explain how that sum was made up or calculated;
b.	the alternative claim based on fraud does not properly particularise the fraudulent matters apparently relied on by the plaintiff. I have assumed that the alternative claim is based on contract and not, for example, on a representation that may be actionable by reason of statute;
c.	the defence raises the issue of the effectiveness under Macedonian law of the “informal” arrangement reached with the plaintiff in March 1986. It seems apparent that even on the plaintiff’s case, issues relating to Macedonian law are likely to arise as the plaintiff sues upon an agreement reached in Victoria for the sale of land in Macedonia.
d.	Macedonian law is a question of fact which would be determined at a trial of this proceeding following the receipt of expert evidence. There is presently no expert statement which has been filed in anticipation of the trial next month. If there is an ongoing issue relating to whether the defendant signed the document relied upon by the plaintiff, or as to the content of Macedonian law because it may have some application to the case, then those matters would require expert evidence to be filed in the proceeding.
e.	In the order I made on 23 June 2010, I required the plaintiff, if she wished to proceed with an application to have the proceeding conducted on her behalf by her daughter-in-law, to file material estimating the length of the hearing and

providing details of her witnesses. The hearing was estimated to take between three and five days. Previous estimates were four days and two to three days.

f.

In February 2010, the plaintiff served five subpoenas for person to produce documents and/or to give evidence. The subpoenas included one served on the defendant. In discussion today with Mrs Slaveska, it seems that the plaintiff would have at least 11 witnesses at the trial (not including the defendant or an expert witness in relation to Macedonian law).

g.

The plaintiff has not, in support of the present application set out, except in a very cursory way in relation to some of the witnesses, the substance of the evidence that they would give at trial. It is difficult in those circumstances to fully appreciate the level of understanding that the plaintiff and Mrs Slaveska have of the task of presenting the plaintiff’s case at trial. During the course of the hearing of the application, I attempted to discuss the matter with Mrs Slaveska. Repeatedly, she returned to the simplistic view of the case and what she described as the “unfairness” of the situation for her mother-in-law.

12         Mrs Slaveska has recent experience in civil litigation, having represented her husband, as his litigation guardian, in proceedings before Kyrou J in the Supreme Court of Victoria, in which her husband sued the State of Victoria and a number of police officers. When Kyrou J granted Mrs Slaveska leave to act as litigation guardian for her husband, and to do so without the intervention of solicitors, he was of the view that this course would facilitate the completion of the trial which had already commenced. The grant of leave was not opposed by defendants’ counsel and Kyrou J permitted Mrs Slaveska to represent her husband. Material has been filed on behalf of the defendant containing selective parts of the transcript of the trial, which comprises some 16,000 pages. I am not prepared, on the basis of those pages to make any judgment as to the performance of Mrs Slaveska in the proceeding before Kyrou J or to use that information in forming a judgment as to whether, in the present case, it would be appropriate to allow Mrs Slaveska to perform a similar role in relation to her mother-in-law.

13         My judgment is that the plaintiff herself is incapable of conducting the proceeding on her own behalf, with or without the assistance of a McKenzie friend. The plaintiff would effectively need someone to represent her and to conduct the proceeding rather than simply being available to assist her in Court.

14         The principles that I must apply in this application have been discussed in two recent decisions of the Supreme Court of Victoria. In Skrijel v Mengler [2003] VSC 128, Nettle J noted in paragraph 10, “The Court does have an inherent right in regulating

its own proceedings to allow a person not being a lawyer to conduct a case on behalf
of a party…Nevertheless, it has long been regarded in the higher courts as
appropriate ordinarily to refuse to exercise the discretion in favour of allowing the

appearance of non-qualified persons”. Nettle J referred to a New Zealand authority
and a statement in that case to the effect that, “the exercise of discretion to grant

leave being rare and most importantly, that the circumstances would be exceptional

or unusual and their content would be modest”.

15         Nettle J continued in paragraph 12, “Thus, although from time to time in matters of

practice and procedure and in some matters which are not of great complexity, the safeguards which follow from proper legal representation are not eroded by allowing for representation by unqualified persons who do not have the responsibilities and
court has permitted a litigant to appear by an unqualified agent, by and large the

duties of counsel”. In that case, Nettle J concluded that there were circumstances which were “sufficiently exceptional to grant leave for a lay advocate to appear” as the defendants were “united in their consent to the appointment” of the lay advocate

for the plaintiff and, as Nettle J stated, “there is a real likelihood that their clients may
suffer more harm” if he were to refuse the application.

16         In Apostolou v Commissioner of State Revenue [2008] VSC 332, Mandie J, at paragraph 21 said, “As an incident of controlling its own proceedings, a court has a

discretion, in the interests of justice, to permit a lay person to appear on behalf of a party. The relevant factors to be taken into account will vary from case to case. One of the important factors in most cases, if not every case, is that the conduct of a case

by a lay person is not under the disciplinary control of the court (or other relevant
professional and disciplinary bodies). Another important factor, in all but the simplest
case, is that the court is unlikely to receive the skilled and learned assistance that it
may expect from a professionally qualified representative. A further factor, often of
importance, is that the represented party’s interests may not be well served, indeed
may be ill-served, by a lay representative. It seems to me that all of the foregoing

factors are relevant in the present case”. Although Mandie J did not find it necessary
to finally determine the question, he said he was “inclined to conclude that leave

should not be granted to Mr Vasiliou to continue to represent the appellant in this

proceeding”.

17

The plaintiff’s affidavit in support of the application refers to a number of solicitors retainer or have not been acceptable to the plaintiff. The last solicitor who apparently acted for the plaintiff was Mr Les Christie. In an affidavit sworn by Mrs Snezana Slaveska on 23 June 2010, she referred to the fact that Mr Christie had been recommended by the defendant’s solicitor, Mr Chris Alexander of Novatsis & Alexander. In her affidavit, Mrs Slaveska related a series of events in June 2010 prior to the planned trial date of 23 June 2010. Mrs Slaveska concluded in paragraph 26 of her affidavit, “I believe that Chris Alexander and Les Christie both worked in

conspiracy against my mother-in-law and took an advantage of her and planned her

to have no representation for today so they can get costs against her”.

18         The material contained in that affidavit and the answering material, provides little basis for the conclusion set out by Mrs Slaveska in her affidavit. It does, however, indicate that Mrs Slaveska may find it very difficult to remain sufficiently detached from the issues in the proceeding to give proper consideration to what might be in the

plaintiff’s best interests.

19         I am not confident, at the present time, that Mrs Slaveska understands the nature of the task required of a person accepting the responsibility to conduct the 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. The defendant, in
this case, opposes an order that Mrs Slaveska be permitted to act as lay advocate for
her mother-in-law.

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Mrs Slaveska has submitted to me today that although an order is sought in the terms engage the services of a lawyer. I was told that later that day the plaintiff had an appointment to see another solicitor. I consider, however, that on basis of the legal authorities which I must follow and the judgment I have formed about the capacity of Mrs Slaveska to conduct the proceeding and having regard to the interests of both the plaintiff and the defendant, it would be inappropriate to make the order sought.

21         As to whether circumstances may change in the future, it is always a question that remains open. I have detailed many of the matters which, at the present time, are unresolved and other issues which point to a particular complexity in the present litigation. In my view, it is probably unlikely that Mrs Slaveska could attain the

necessary expertise in order to properly conduct this proceeding. It is likely, in my
view, that the only way in which this litigation can proceed is if the plaintiff engages a
legal practitioner to act on her behalf, and that, otherwise, it would not be possible for
the Court to do justice between the parties in this proceeding.

22         In a moment, I will foreshadow the orders I consider are appropriate for the future conduct of this proceeding. Before I do so I will deal with the application for a stay in relation to the costs order made by Judge Shelton on 18 February 2010.

23         The case was set down for trial on 18 February 2010. The plaintiff appeared without lawyers on that day. The Court noted in “other matters” that “The Court again directs that the plaintiff must take immediate steps to engage other lawyers”. The trial was

vacated and refixed on 23 June 2010. Judge Shelton ordered that, “The plaintiff pay

the defendant’s costs thrown away by reason of this adjournment to be taxed on

Scale D in default of agreement”. He further ordered that, “The question of whether

Messrs Fernandez & Johnson ought indemnify the plaintiff in respect of such costs, pursuant to rule 63A.23 of the County Court Civil Procedure Rules 2008, be fixed for

hearing on Monday 22 March 2010 at 9.30am before His Honour Judge F.J. Shelton”.

24         On 21 April 2010, Judge Shelton ordered by consent as follows, “Pursuant to an

agreement reached between the parties, dated 20 April 2010, the plaintiff’s
application for non-party costs against Fernandez & Johnson, pursuant to Rule
63A.23 of the County Court Civil Procedure Rules 2008, made on 18 February 2010

minute of consent orders, which appears to be signed by Mr Ljupco Slaveski “as
representative of Stojanka Slaveska”. The costs were taxed before Registrar Deviny
on 10 September 2010 and allowed in the sum of $7,031.30. The order of the be dismissed. There be no order as to costs”. The order was made on the basis of a leave granted for daughter-in-law, S. Slaveski, to speak on respondent’s behalf”.

25         On 27 September 2010, the defendant issued a warrant of seizure and sale in respect of the costs order. The plaintiff, on 7 October 2010, issued a summons in the Court of Appeal Registry in the Supreme Court seeking “leave to extend the time to

apply for leave to appeal from the cost order of Judge Shelton, dated 18 February

2010”. There is no material before me to support the plaintiff’s application for a stay of execution in respect of the costs order.
26	want her mother-in-law to be disturbed by the sheriff’s officers at her home, that until recently she and her husband had been very much involved in the proceeding before Kyrou J in the Supreme Court and that she would investigate the possibility of making application to the County Court Registry to pay off the costs order by instalments.

Mrs Slaveska informed me, during the hearing of the application, that she did not with them and there was the possibility of further discussions occurring following the conclusion of the hearing today. I consider that it is inappropriate for me, on the basis of the material presently before me, to intervene in this matter.

27         I consider, however, that although the matter is now subject to appeal, it would be more appropriate for any further stay application prior to the return date of the summons for leave before the Court of Appeal on 12 November 2010 to be heard in this Court rather than for the Court of Appeal to be troubled by the matter. In those circumstances, I will reserve liberty to the plaintiff to make a further application for a stay on the basis of appropriate material that explains the delay and the reasons why it is suggested the order of Judge Shelton might be subject to appeal and any other matter the plaintiff considers relevant. Hopefully, the parties themselves will be able to resolve this issue at least on an interim basis until 12 November. Once the matter is before the Court of Appeal on 12 November 2010, it would be inappropriate for this Court to play any further role in relation to the costs order.

28         I will indicate the orders I consider appropriate to make and then I will ask the parties to make further submissions in relation to those orders, if they wish to do so.

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Certificate

I certify that these 8 pages are a true copy of the reasons for decision of His Honour Judge

Anderson delivered on 8 October 2010 and revised on 12 October 2010.

Dated: 12 October 2010

Caroline Dawes

Associate to His Honour Judge Anderson