Slaveski v Attorney-General
[2014] VSC 504
•6 OCTOBER 2014 (Revised 8 October 2014)
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
PRACTICE COURT
S CI 5803 of 2012
| LJUPCO SLAVESKI | Applicant |
| v | |
| ATTORNEY-GENERAL | Respondent |
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JUDGE: | DIXON J |
WHERE HELD: | MELBOURNE |
DATE OF HEARING: | 6 OCTOBER 2014 |
DATE OF RULING: | 6 OCTOBER 2014 (Revised 8 October 2014) |
CASE MAY BE CITED AS: | SLAVESKI v ATTORNEY-GENERAL |
| MEDIUM NEUTRAL CITATION: | [2014] VSC 504 |
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PRACTICE AND PROCEDURE – Plaintiff a vexatious litigant – Urgent application for leave to commence a proceeding - Whether leave should be granted for lay person to represent plaintiff – Application made by plaintiff’s daughter while plaintiff apparently residing in another country and unwilling to attend court – Relevant discretionary considerations discussed – Application for leave to appear refused – Application for urgent relief refused – Application referred to an associate judge for directions.
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APPEARANCES: | Counsel | Solicitors |
| For the Applicant | ||
| For the Respondent | No appearance |
HIS HONOUR:
On 25 February 2014, Ljupco Slaveski was declared a vexatious litigant by this court. He has appealed that judgment but his appeal is yet to be determined.
On a date that has not been disclosed by the material, the Federal Court of Australia made a sequestration order against Mr Slaveski. He appealed that order and, I am told, that the appeal is listed to be heard in the Federal Court tomorrow, 7 October 2014.
This morning, Mr Slaveski’s daughter, Stojne Slaveski, filed his application by way of a summons in the Attorney-General’s vexatious litigant declaration proceeding. Ms Slaveski now seeks my leave to appear on her father’s behalf to apply for final relief.
Ms Slaveski informed me that notice of the application was given by telephone to the Victorian Government Solicitor's Office, particularly identifying that summons was urgently before the court today. There was no appearance for the Attorney-General in response to the summons. In the circumstances, that is hardly surprising.
Ms Slaveski seeks an order that Mr Slaveski be given leave to commence a proceeding in VCAT. The proceeding is, in effect, the reinstatement of a proceeding commenced by an application form, apparently handwritten by Mr Slaveski, that was on 19 June 2014 filed at VCAT on Mr Slaveski's behalf by his wife.
The respondent was Rothstein & Associates Pty Ltd. The application sought an order that:
… under the Legal Profession Act, and the Fair Trading Act or the Australian Consumer Law and Fair Trading Act 2012 that all costs, invoices (which a fabricated) be set aside or void. The pay is my compensation for pain and suffering. (sic)
The application was accompanied by a three page statement apparently prepared by Mr Slaveski. In that statement, Mr Slaveski recounts that Mr Rothstein issued proceedings against him in the Magistrates' Court for unpaid legal fees in an amount of $78,000 to which he filed a defence and also made a complaint to VCAT. Mr Slaveski contends that he was 'manipulated' into moving his complaint to the Magistrates' Court as a counterclaim to the fees claim by Rothstein & Associates.
Mr Slaveski states that the claim and counterclaim came on for hearing in the Magistrates' Court in July 2011. He claimed, for reasons that I will shortly refer to, that he was unable to continue to participate in the hearing before the magistrate and he withdrew to seek an injunction in this court to restrain the magistrate from further hearing the matter. Mr Slaveski was unsuccessful. The magistrate heard the remainder of the case in his absence and dismissed his counterclaim. Rothstein & Associates entered judgment for $100,000.
The sequestration order in respect of Mr Slaveski’s estate is, apparently, founded on this judgment in favour of Rothstein & Associates.
The circumstances of this proceeding in the Magistrates’ Court are not unfamiliar to me because Mr Slaveski appealed the magistrate's order. His appeal was summarily dismissed by an associate judge. Mr Slaveski appealed to the judge in the Practice Court but failed to attend to prosecute his appeal and it was dismissed. Mr Slaveski then applied to have his appeal reinstated. That application came on in the Practice Court before me on 26 September 2012. His wife gave his reason for not attending. Mrs Slaveska told me that Mr Slaveski was then in Thailand, apparently seeking medical assistance. This assertion was not then corroborated by evidence and it is repeated today. Mrs Slaveska submitted that the expiry of a bankruptcy notice on 19 September 2012 created circumstances of urgency. The bankruptcy notice was based on the Magistrates’ Court judgment won by Rothstein & Associates. Although not persuaded by evidence about Mr Slaveski’s current whereabouts and circumstances, I granted limited leave to Mrs Slaveska to make submissions on that application. I pause to suggest that the bankruptcy notice then referred to is probably part of the process leading to the sequestration order presently under appeal.
I dismissed the application.[1] Mr Slaveski applied for leave to appeal my decision and the application for leave was heard by the Court of Appeal on 16 November 2012 and leave was refused.[2]
[1]Slaveski v Rotstein & Associates [2012] VSC 435.
[2]Slaveski v Rotstein & Associates [2012] VSCA 291.
There is in the reasons for these decisions a detailed exposition of what occurred in the hearing before the magistrate. The Court of Appeal concluded that Mr Slaveski received a fair hearing from the magistrate. Maxwell P stated:
It was contended on the hearing of this application that Mr Slaveski was denied the opportunity to present evidence in support of his defence to the respondent’s claim. This contention is without foundation, in my view. First, there is nothing in the detailed summaries (by Daly AsJ and by Dixon J) of what transpired before the magistrate to suggest that Mr Slaveski gave any indication that he wished to present evidence. Secondly, and decisively, Mr Slaveski has sworn a series of affidavits in support of the challenge to the magistrate’s decision, yet there is no suggestion in any of that material that Mr Slaveski had wished to present evidence, less still any identification of what that evidence might have been. Evidently, Mr Slaveski felt constrained to leave the courtroom. That was a decision he made for himself. Having been able to conduct the proceeding quite effectively while he was present, he elected to leave. He was on notice when he did so that the proceeding would continue in his absence. The content of natural justice always depends on the circumstances. For the reasons given by Dixon J, what occurred demonstrates that Magistrate Lauritsen did not deny Mr Slaveski a fair hearing of his defence to the respondent’s claim. The contrary is not reasonably arguable.
In February 2014, Mr Slaveski was declared a vexatious litigant by Williams J[3] and these proceedings, both before the magistrate and subsequently, formed part of the evidentiary basis for that application. There has been no stay on the operation of that order and unless and until it is overturned by the Court of Appeal, Mr Slaveski remains a vexatious litigant.
[3]Attorney-General v Slaveski [2014] VSC 48.
Mr Slaveski now has his daughter seeking leave to act for him on this application. Stojne Slaveski seeks to reinstate the VCAT claim in order to submit to the Federal Court judge on the appeal against the sequestration order that Mr Slaveski has a good claim against Rothstein & Associates that he does not owe money to Rothstein & Associates. The application that was made by Ms Slaveska on behalf of Mr Slaveski in June this year was dismissed by VCAT when the tribunal became aware that Mr Slaveski had been declared a vexatious litigant by order of the court. That application is exhibited as the application that Mr Slaveski seeks leave to institute. I have no evidence about the issues sought to be raised in the proposed VCAT proceedings and the issues to be raised do not appear from the application. It is likely that defences of issue estoppel and Anshun estoppel will be available to Rothstein & Associates.
Having regard to the history of the matter, I think it likely, on the ultimate determination of this matter, that this application will be seen as hopeless and foredoomed to fail, although this is not a matter that I need determine today. I do not propose to grant the final relief in the proceeding on an ex parte basis as a matter of urgency. My preliminary view is that this application is fanciful and liable to summary dismissal under s 63 of the Civil Procedure Act 2010. My concern about the viability of the claim for which leave is being sought is that the issue of Mr Slaveski’s liability to Rothstein & Associates, including the matters then raised by his defence and counterclaim that he now seeks to raise in the proposed VCAT proceeding, was, or ought to have been, determined by the magistrate. Mr Slaveski failed to impugn the judgment on appeal. It will be necessary for him to grapple with that fact not only before the Federal Court but also on any occasion when he seeks to prosecute his application for leave to issue the foreshadowed VCAT proceeding. Mr Slaveski, and his helpers, should immediately appreciate that this application is liable to summary dismissal and be in a position to contend why the application should be permitted to proceed to trial. The court has power of its own motion to summarily dismiss the application.
The initial application today is that I permit Ms Slaveski to appear on behalf of her father to make the application. In essence, what she seeks to do is to appear in a role that is part McKenzie Friend[4] and part litigation guardian.
[4] McKenzie v McKenzie [1971] P33, 38; Vella v Wybecca Pty Ltd [2014] VSC 443.
Through its jurisdiction to control its own processes, this court has a discretion in the interests of justice to permit a lay person to appear on behalf of a party to a proceeding. The factors to be taken into account in determining whether to grant that leave will vary in each case.
It is particularly significant, as Mandie J (as his Honour then was) pointed out in Apostolou v Commissioner of State Revenue,[5] that the conduct of a case by a lay person is conduct of the case by a person not under the disciplinary control of the court or other relevant professional and disciplinary bodies. Neither the court nor the litigant receive a skilled and learned assistance that would otherwise be provided from a professionally qualified representative and the question that arises is whether the interests of both the court and of the litigant would be well served by permitting that course.
[5][2008] VSC 332 at [21].
A further relevant consideration is the apparent merits of the application. On Ms Slaveska's application to appear for her father, I permitted her to state the grounds upon which the application was being put without first ruling on whether or not she should be permitted to appear to make the application. I have already made some observations about the apparent merits of the application. I do so primarily for the purpose of determining whether Ms Slaveski should be permitted to appear for her father but also to put Mr Slaveski on notice why this application is liable to be summarily disposed of.
Another reason advanced by Ms Slaveska for seeking leave to appear was that such leave had been granted to her in the Federal Court proceeding for the hearing tomorrow. However, I do not know on what basis or by what reasoning that leave was granted.
In respect of the application, Ms Slaveski has sworn two affidavits in support of the application generally. Her affidavits advanced a number of significant assertions about which she is unlikely to have personal knowledge. She does not state in her affidavit that she has personal knowledge of the matters she has deposed to. She informed me from the Bar table that she had only recently become involved in her father’s affairs and she frequently deferred to her mother during the hearing for ‘instructions’ in order to respond to my questions. It is possible that Mrs Slaveska is the source of the beliefs deposed to as fact by Ms Slaveski but I am unable to make any finding about the sources of hearsay statements in the affidavits.
There is no affidavit from Mr Slaveski. In my view, that is a significant omission. It has been necessary to review the circumstances deposed to in Ms Slaveski’s affidavits with some care, particularly as there are statements made in the affidavits that do not sit well with facts found in the appeals that I earlier referred to.
Ms Slaveski deposes that Mr Slaveski has been living overseas since 19 September 2013 having:
... left the country due to an incident that happened in the Supreme Court of Victoria in Court 7 where he was fearful for his life and he left the country since.
Ms Slaveski seeks leave to represent her father because:
He is not here and it is not fair for his application not to be heard.
The assertions concerning Mr Slaveski’s present whereabouts and his medical condition are wholly inadequate and I am not persuaded that there is any, or any sufficient ground, to accept as fact that Mr Slaveski is unable, as opposed to unwilling for personal reasons, to appear to prosecute his application. These assertions have now been repeated without a proper evidentiary base for some time. Bearing in mind that Mr Slaveski is a vexatious litigant, the court is entitled to exercise caution in considering the purpose for any application that he be represented by a lay person in prosecuting an application for leave to institute proceedings.
Ms Slaveski informed me that she is a law student although her affidavit does not provide any information that might persuade me that she had any capacity to meaningfully assist either her father or the court. She did not identify the law school where she is studying or the stage that she has reached in those studies. I am not persuaded that the interests of both the court and of the litigant would be well served by permitting Ms Slaveski to appear for her father on the application.
Ms Slaveski states the urgency of the application stems from the fact that she only recently became aware of the VCAT proceedings concerning the challenge to the validity of the solicitor's invoices and she asserts, in her affidavit, that Mr Slaveski was somehow persuaded to transfer his claim to the Magistrates' Court. Ms Slaveski states that Mr Slaveski's counterclaim was never heard due to Mr Slaveski's absence from court. She states that her father was and is on daily medication and tablets and because of this, he was taken advantage of by Mr Rothstein. She says his counterclaim was struck out because he was unrepresented and unaware of the rules and procedures in court and, ultimately, was absent from the hearing at the Magistrates' Court. These assertions conflict with the findings documented in the earlier proceedings.
If it is the case that those circumstances can be demonstrated to be material to the appeal in the Federal Court, the Federal Court may be persuaded to adjourn the appeal that it has before it. No basis demonstrating that materiality was put to me and I cannot see why the Federal Court would now consider that an issue previously determined by a magistrate adversely to Mr Slaveski was relevant on an appeal against a sequestration order.
I am not persuaded that success in this application will provide any assistance to Mr Slaveski in his Federal Court appeal. I have already noted that the circumstances of Mr Slaveski's absence from the Magistrates' Court when the hearing of his defence and counterclaim was completed have been considered by an associate judge, two judges of the Trial Division and the Court of Appeal. In the reasons for judgment are detailed descriptions of the course of that litigation. I do not accept that Mr Slaveski is ignorant of the findings made by courts about the history of this matter and no explanation was proffered about the absence of an affidavit from him. The matters deposed to in paragraphs 7 to 10 of Ms Slaveski’s affidavit sworn 6 October 2014 are not consistent with the findings made in either the judgments that I have already referred to or the findings made by Williams J when Mr Slaveski was declared vexatious.
The circumstances that I have already described demonstrate that Ms Slaveska has a poor grasp of the facts that lie behind the proposed VCAT proceeding and the contentions that she wishes to raise in the appeal in the Federal Court. I am not persuaded that I should accept her statement from the Bar table that she only just became aware of the Federal Court proceeding or what has previously occurred in relation to the Magistrates' Court proceeding. I do not accept the proposition that those assisting Mr Slaveski only recently became aware of the proceeding in VCAT that was prepared by Mr Slaveski and filed by his wife or of the circumstances that occurred in the Magistrates' Court when these issues were litigated. Nor do I accept that these matters have suddenly become urgent because Ms Slaveski has only just learnt of these matters. The circumstances of urgency in this case appear to me to be artificial.
I am not persuaded that conduct of the application by a person not under the disciplinary control of the court or other relevant professional and disciplinary bodies is desirable. If leave was granted, Ms Slaveski would be subject to the overarching obligations under the Civil Procedure Act 2010.[6] It is feasible that her statutory obligations to the court, if permitted to represent her father, would conflict with her sense of family loyalty.
[6]See s 10(1)(b) Civil Procedure Act 2010.
Finally, it is necessary to also state that what is being sought is that this application be finally determined in the absence of both Mr Slaveski and the respondent. The reasons for Mr Slaveski absence from the jurisdiction appear to be essentially the same reasons that were provided in 2012 when the appeals in relation to the procedure before the magistrate were before the court. There would appear to be, now, a number of occasions upon which Mr Slaveski has sought to conduct litigation in this court other than by using duly qualified legal representatives or appearing himself to do so. There have also been prior occasions when the appointment of a litigation guardian for Mr Slaveski has been necessary. Mr Slaveski has not put on any evidence that would support the contention that he should be represented by another party, in this case his daughter, because he cannot return to Australia or for any other reason. For my part, I am unpersuaded that there is good and sufficient reason for his absence and for his daughter’s application.
There is the additional fact that Mr Slaveski is a vexatious litigant. The proposition that a vexatious litigant might be granted leave to engage in litigation in this court, represented by a family member, from a foreign country without ever attending court in person for unsubstantiated reasons of personal convenience is unacceptable. His failure to play any role in the proposed application whether by attendance or by filing an affidavit is a further reason why I will refuse Ms Slaveski’s application.
I do not consider that it is appropriate to grant final relief in this proceeding on an ex parte basis in the Practice Court on the material that is before me and on the basis that it is urgently required. I consider that the apparent lack of merit of the proposed proceeding is a strong consideration against an exercise of discretion to permit Ms Slaveski to appear on her father’s behalf.
Leave to Ms Slaveski to appear for the applicant will be refused. The application should proceed in the usual way and have a trial date allocated after the application has been properly served and all necessary material has been filed. I repeat that Mr Slaveski should be in a position on the next occasion that the matter is before the court to show cause why the application should not be summarily dismissed under s 63 of the Civil Procedure Act 2010.
For all of these reasons, I refuse the leave sought by paragraph 1 of the summons and I refer the application by paragraph 2 of the summons to the associate judge in Court 2 at 11.00 am on 13 October 2014 for directions as to its future conduct.
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