Slaveski v Attorney-General (Vic) - [2013] VSCA 165

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCR 2013 0082

LJUPCO SLAVESKI
	Applicant
v
ATTORNEY-GENERAL FOR THE STATE OF VICTORIA
	Respondent

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JUDGES	WEINBERG and PRIEST JJA
WHERE HELD	MELBOURNE
DATE OF HEARING	19 June 2013
DATE OF JUDGMENT	19 June 2013
DATE OF REASONS	26 June 2013
MEDIUM NEUTRAL CITATION	[2013] VSCA 165
JUDGMENT APPEALED FROM	Attorney-General for the State of Victoria v Slaveski (Unreported, Supreme Court of Victoria, Almond J, 12 June 2013)

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PRACTICE AND PROCEDURE — Application for leave to appeal from interlocutory decision — Proceedings instituted by Attorney-General for declaration that applicant a vexatious litigant under Supreme Court Act 1986 s 21 — Applicant caused to be issued 20 subpoenas addressed to various members of the judiciary, the Attorney-General, police officers and legal practitioners — Recipients required to give evidence and produce documents relating to perceived conspiracy against applicant — Subpoenas struck out on application by Attorney-General — Whether subpoenas oppressive — Whether subpoenas relevant to issues in the trial — Evidence sought irrelevant given nature of proceedings under s 21 — ‘Fishing expedition’ by applicant to determine viability of ‘counterclaim’ — Application for leave to appeal refused — Supreme Court (General Civil Procedure) Rules 2005 r 42.04(1); Botany Bay Instrumentation & Control Pty Ltd v Stewart [1984] 3 NSWLR 98 applied.

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APPEARANCES:	Counsel	Solicitors
For the Applicant	The Applicant appeared in person
For the Respondent	Dr A Hoel	Victorian Government Solicitor’s Office

WEINBERG JA
PRIEST JA:

The Attorney-General for the State of Victoria has instituted proceedings to have the applicant, Ljupco Slaveski, declared a vexatious litigant under s 21 of the Supreme Court Act 1986 (‘the s 21 proceeding’). This application for leave to appeal concerns interlocutory orders made in that proceeding.

Background

On 24 May 2013, some 20 subpoenas were issued in the s 21 proceeding at the request of Mr Slaveski. These subpoenas were directed to persons including the Attorney-General, the Chief Justice and the President of the Court of Appeal. The other recipients were persons who had been, in some way, connected with the various proceedings to which Mr Slaveski has been a party in recent years. These included further judicial officers of the Supreme Court, the Chief Magistrate, a Crown prosecutor, seven police officers, three legal practitioners, and persons who work within the Supreme Court.

By summons filed 28 May 2013, the Attorney-General sought an order that those subpoenas be set aside. The application was supported by affidavits sworn by Dr Adrian Hoel, the solicitor with the conduct of the proceeding on behalf of the Attorney-General.

The application was heard on 11 June 2013 by Almond J. On 12 June 2013, his Honour made orders wholly setting aside the subpoenas, having concluded that the evidence sought in the subpoenas would not add to the relevant evidence in the s 21 proceeding, and that it would be oppressive to require compliance. His Honour ordered that Mr Slaveski pay the Attorney-General’s costs.

By summons dated 17 June 2013, Mr…

Grounds of appeal

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

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

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

Consideration

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

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

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Details

Case: [2013] VSCA 165
Decision Date: 19 June 2013

CaseChat Overview and Summary

In the case of Slaveski v Attorney-General (Vic), the applicant sought leave to appeal an interlocutory decision made in proceedings instituted by the Attorney-General for a declaration that the applicant was a vexatious litigant under section 21 of the Supreme Court Act 1986. The applicant had issued 20 subpoenas to various members of the judiciary, the Attorney-General, police officers, and legal practitioners, requiring them to give evidence and produce documents related to a perceived conspiracy against the applicant. The subpoenas were struck out by the Attorney-General on the basis that they were oppressive and irrelevant to the issues in the trial.

The legal issues before the court were whether the subpoenas were oppressive and whether they were relevant to the issues in the trial. The court held that the evidence sought by the applicant was irrelevant given the nature of the proceedings under section 21, and that the subpoenas constituted a 'fishing expedition' to determine the viability of a 'counterclaim'. The court found that the applicant had not demonstrated a sufficient probability of success on appeal and dismissed the application for leave to appeal.

The court's reasoning was based on the Supreme Court (General Civil Procedure) Rules 2005 r 42.04(1) and the decision in Botany Bay Instrumentation & Control Pty Ltd v Stewart [1984] 3 NSWLR 98, which established that an application for leave to appeal from an interlocutory decision is not to be treated with favour unless the applicant can demonstrate a sufficient probability of success on appeal. The court held that the applicant had not met this threshold and that the subpoenas were not relevant to the issues in the trial. The court also noted that the applicant's conduct amounted to an abuse of the court's process.

The court did not make any final orders as the application for leave to appeal was dismissed. The applicant was not granted leave to appeal the interlocutory decision, and the proceedings against the applicant for a declaration that they were a vexatious litigant continued.

Orders