Slaveski v Rotstein and Associates Pty Ltd (No 2)
[2013] FCA 1184
•8 November 2013
FEDERAL COURT OF AUSTRALIA
Slaveski v Rotstein & Associates Pty Ltd (No 2) [2013] FCA 1184
Citation: Slaveski v Rotstein & Associates Pty Ltd (No 2) [2013] FCA 1184 Appeal from: Slaveski v Rotstein & Associates Pty Ltd [2013] FCCA 257 Parties: LJUPCO SLAVESKI v ROTSTEIN & ASSOCIATES PTY LTD TRADING AS ROTSTEIN COMMERCIAL LAWYERS File number(s): VID 400 of 2013 Judge(s): PAGONE J Date of judgment: 8 November 2013 Date of hearing: 8 November 2013 Date of last submissions: 8 November 2013 Place: Melbourne Division: GENERAL DIVISION Category: No Catchwords Number of paragraphs: 12 Counsel for the Appellant: Ms S Slaveska as amicus curiae Counsel for the Respondent: Mr S Sara Solicitor for the Respondent: Rotstein Commercial Lawyers
IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY
GENERAL DIVISION
VID 400 of 2013
ON APPEAL FROM THE FEDERAL CIRCUIT COURT OF AUSTRALIA
BETWEEN: LJUPCO SLAVESKI
AppellantAND: ROTSTEIN & ASSOCIATES PTY LTD TRADING AS ROTSTEIN COMMERCIAL LAWYERS
Respondent
JUDGE:
PAGONE J
DATE OF ORDER:
8 NOVEMBER 2013
WHERE MADE:
MELBOURNE
THE COURT ORDERS THAT:
1. The appeal be dismissed.
Note:Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY
GENERAL DIVISION
VID 400 of 2013
ON APPEAL FROM THE FEDERAL CIRCUIT COURT OF AUSTRALIA
BETWEEN: LJUPCO SLAVESKI
AppellantAND: ROTSTEIN & ASSOCIATES PTY LTD TRADING AS ROSTEIN COMMERCIAL LAWYERS
Respondent
JUDGE:
PAGONE J
DATE:
8 NOVEMBER 2013
PLACE:
MELBOURNE
REASONS FOR JUDGMENT
(revised from transcript)
This is an appeal from an order of Judge Burchardt, made 15 May 2013. The appellant in this proceeding does not appear. He had asked for the proceeding to be adjourned and that application was rejected by me in reasons that were published on 6 November of this week. His wife, Mrs Slaveska, has attended court today and has asked to be heard and has been heard freely as an amicus curiae, and has made submissions that the appeal should not be heard today and has made some limited submissions in respect of the appeal itself. Mr Sara appeared for the respondent and opposed any further application to adjourn the proceeding but did not oppose my hearing Mrs Slaveska. Mr Sara pressed for the appeal to be heard today, being date set for its hearing and submitted that it should be dismissed.
The position of Mrs Slaveska is difficult: she is not the party to the proceeding and her position as the appellant’s wife does not impose upon her any duty or obligation that would fall upon a party. She has attended court today to be of assistance and has done that to some extent. Her submissions seeking an adjournment have been, in effect, that the appellant is not here and that if Mrs Slaveska were to appear on his behalf, she would need time in order to prepare for the appeal. Her submissions in respect of the appeal itself, limited as they were on the basis of not having prepared for it, were largely based upon the submission that the bases upon which the order had been made by Judge Burchardt were erroneous in fact.
I will not adjourn the proceeding, and I will dismiss the appeal, for the following reasons. This appeal was brought by Mr Slaveski on an application commenced by Mr Slaveski which was heard by Judge Burchardt in February and March of this year. Mr Slaveski was unsuccessful before Judge Burchardt and an appeal was lodged to this court. On 5 July of this year, Marshall J gave directions concerning the conduct of the appeal making it clear that it would be heard in the November sittings of the Full Court in Melbourne. It is clear from the court file that those orders were communicated to the parties by email at about that time. On 24 July 2013 there were amended orders made by his Honour and those orders were, again, communicated to the parties by email at about that time.
On 16 August 2013 the appeals coordinator wrote to the parties by letter notifying them that the hearing of the appeal had been fixed for 8 November 2013. The orders that had been made on 5 July 2013 had provided for the hearing to occur during the Full Court sittings in the week commencing 4 November 2013 and the letter of 16 August 2013 notified the parties of the hearing date of 8 November 2013. It follows that since at least 16 August it had been known that the hearing of the appeal was to take place on 8 November 2013, and since about 5 July 2013 it had been known that the hearing was to take place in the November sittings of the Full Court in Melbourne.
Mr Slaveski’s absence today is said to be due to an incident which, I am told, occurred in the Supreme Court of Victoria some time in September that has been the cause of Mr Slaveski’s absence from Australia, and therefore, from appearing in Court. But that gives me no explanation at all why other steps were not put in place after the incident in September to enable the appeal to proceeding on the date fixed for hearing, nor does it give me an explanation for why steps were not taken before the incident in September for the proper conduct of Mr Slaveski’s appeal. All parties have a right to a fair hearing – as Mrs Slaveska correctly said. It is an important tenet of our legal system and has been so for hundreds of years.
A fair hearing involves a party being able to put forward his or her case before an impartial decision maker. That has occurred at first instance in the hearing by Judge Burchardt. Mr Slaveski was entitled to appeal that decision and an appeal process was initiated which permitted the appellant to come to court and to say that a mistake had been made in the decision at first instance. Mr Slaveski was entitled to say “I wish a mistake to be rectified”. Mrs Slaveska has gone into some of the background of the dispute between her husband and Rotstein & Associates, but it is important to bear in mind that this appeal is fundamentally not about the background, nor is it about the events that occurred in September in the Supreme Court. It is much more narrow. It is whether there was an error of law revealed in the decision of Judge Burchardt handed down on 15 May of this year. Mr Slaveski has known about this appeal for a long time and he has been on notice that his appeal was fixed to be heard today. He previously applied for an adjournment and that application was rejected.
The respondent also has a right to finality in litigation and the existence of this appeal is causing difficulty with the enforcement of the rights which it has at law. I make no moral judgment about whether the enforcement of those rights is proper, fair, reasonable or otherwise. The respondents have a legal right and the role of the courts is to ensure that rights are enforced. I have read the decision of Judge Burchardt in some detail and on more than one occasion. I was conscious of its terms when considering the application for an adjournment which had previously been made by Mr Slaveski by email and I was conscious of the need to consider its detail for the appeal to be heard today.
It seems to me that this is a clear case where nothing has been shown that would undermine the correctness of the decision and nothing has been said by Mrs Slaveska that would indicate that any inquiries that she might make or any preparation that she might make between now and whenever an alternative date might be arranged, would bear upon the legal correctness of the decision which has been made. The history of the underlying dispute is outlined in paragraph 8 of my earlier reasons in rejecting the application to vacate the hearing date. It is clear from that outline that there has been a review of the underlying dispute, and of aspects of the underlying disputes, over a number of years by many court officers.
This is not a case where there has been some failure at some point along the way for Mr Slaveski to put his case fully to an impartial decision maker, nor is it a case where we are dealing with a litigant who is inexperienced in litigation. Plainly, Mr Slaveski is not a lawyer and Mrs Slaveska may one day become one, and has shown herself to be able and competent in the submissions that she has made on behalf of her husband, but she is not yet a lawyer. Nonetheless, Mr Slaveski is experienced in litigation. He is aware of the need to meet court deadlines, he is aware of the importance of matters coming on on dates when they need to come on and he can be presumed to know the importance of having somebody come to court armed with material to deal with whatever needs to be said in a proceeding whether it is in renewing an application for an adjournment or in the hearing of the appeal. Nothing was said to indicate when Mr Slaveski might be able to conduct the appeal whether in person, through his wife or through lawyers.
Having reviewed the decision of Judge Burchardt it is clear to me that what his Honour did was to consider the two principal issues that needed to be considered in the proceeding before him which had been brought by Mr Slaveski. He accorded a degree of latitude to Mr Slaveski in that his Honour was prepared to consider going behind the judgment that had been entered in the earlier proceeding before Magistrate Lauritsen (as his Honour then was) and, as appears clear from paragraphs 32 through to 39 of Judge Burchardt’s decision, his Honour listened to Mr Slaveski and heard Mr Rotstein give evidence. It was evidence of Mr Rotstein which, after argument, his Honour accepted. The notice of appeal filed by Mr Slaveski in this proceeding does not reveal anything that would suggest to me that any of the reasoning of his Honour was in any way defective.
Indeed, most of the grounds of appeal seem completely to miss the critical question for this court, namely, whether there has there been an error of law in his Honour’s decision. There is an assertion of error of law as an alternative to an allegation of bias but no particulars are given and no detail can be found in the notice of appeal and nothing has been filed by Mr Slaveski in particularisation of or in support of the ground. There are other grounds raised in the notice of appeal such as: denial of natural justice, procedural fairness, breach of the hearing rule, conspiracy, summary petition by reference to an absence of fair hearing, suggestions of discrimination, the failure to take all the evidence into consideration. But beyond the broadest of assertions of such grounds, no detail is given upon which an appellate Court could sensibly form the view that Judge Burchardt did anything other than consider the evidence and on the evidence that was available to him his Honour made a decision that was open to him to be made upon that evidence, namely, that the debt, rightly or wrongly, morally open or not morally open, fair or otherwise, was, as a matter of law, owing.
His Honour also considered the counter-claim which Mr Slaveski maintained that he could set up against the debt and his Honour also dealt with that, as can be seen in paragraphs 52 to 55. In those circumstances, the interests of justice require that the proceeding not be adjourned and that the appeal be dismissed.
I certify that the preceding twelve (12) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Pagone. Associate:
Dated: 8 November 2013
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