Slaveski v Rotstein & Associates - [2012] VSC 435

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

PRACTICE COURT

S CI 4500/2011

LJUPCO SLAVESKI	Appellant
v
ROTSTEIN & ASSOCIATES PTY LTD	Respondent

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JUDGE:	DIXON J
WHERE HELD:	MELBOURNE
DATE OF HEARING:	17 SEPTEMBER 2012
DATE OF JUDGMENT:	26 SEPTEMBER 2012
CASE MAY BE CITED AS:	SLAVESKI v ROTSTEIN & ASSOCIATES
MEDIUM NEUTRAL CITATION:	[2012] VSC 435

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Practice and Procedure – application for re-hearing of appeal from an associate judge to a judge in the practice court – summary dismissal under r 58.10(8)(b) of the Supreme Court (General Civil Procedure) Rules 2005 of an appeal under s 109 of the Magistrates’ Courts Act 1989 (Vic) - appeal dismissed on unexplained absence of appellant to prosecute appeal – Relevant considerations – whether sufficient explanation of appellant’s failure to attend court provided – whether appeal enjoyed any real prospects of success – whether futile to set aside order dismissing the appeal – whether prejudice to the party with the benefit of the order – r 58.10(8)(b) Supreme Court (General Civil Procedure) Rules 2005.

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APPEARANCES:	Counsel	Solicitors
For the Appellant	Unrepresented
For the Respondent	Mr R Pedley, solicitor	Rotstein Lockwood Reddy Lawyers

HIS HONOUR:

On 25 July 2011, a magistrate gave judgment against Ljupco Slaveski in favour of Rotstein & Associates Pty Ltd, his former solicitors, for $100,000. The magistrate dismissed a counterclaim by Mr Slaveski and Sky Empire Pty Ltd against Rotstein. Those legal fees were incurred defending a proceeding in this court brought against Mr Slaveski by the Commonwealth Bank. The Commonwealth Bank proceeding was resolved without adjudication.

On 19 August 2011 pursuant to s 109 of the Magistrates’ Court Act 1989, Mr Slaveski appealed the magistrate’s order. The grounds of his appeal were described in his Notice in the following terms:

·The Supreme Court has the ultimate power pursuant to the Constitutional Act 1975, section 85 to vary the Orders made by the Magistrates’ Court
·The Supreme Court has the ultimate power pursuant to the Constitutional Act 1975, section 85 to order hearing de novo or to hear the matter
·The Magistrates made an error continuing the case in my absence
·Magistrate Lauristen was bias/in conspiracy, and ordering Registrar John Walsh to take my case from Magistrate Graeme Johnson Court room and take it to Magistrate Lauristen
·The Magistrate violating my Human and Legal Rights
·Depriving me of having a fair hearing
·Magistrates/ordering 2 Vic/Prot/Police officers with Guns sitting right behind me, and putting my life in jeopardy, regardless the Appellent asking the Magistrates to have security in the Court room with No – GUNS, and or telling the 2 Vic/Prot/Police officers with Guns to sit away from my back
·Increasing my level of anxiety
·Abuse of my legal rights
·Not allowing my wife to represent me, due to my disability
·Neglected my mental health and request for my wife to talk on my behalf
·Continuing with the hearing in my absence
·I have my Human Rights and Medical needs
·Natural Justice.

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.

Continue reading Slaveski v Rotstein & Associates

Details

AGLC: Slaveski v Rotstein and Associates [2012] VSC 435
Case: [2012] VSC 435
Decision Date: 26 SEPTEMBER 2012

CaseChat Overview and Summary

In the Supreme Court of Victoria, the matter of Slaveski v Rotstein & Associates involved an application for a re-hearing of an appeal, initially dismissed by an associate judge. The appellant, Slaveski, sought to appeal the decision to the judge in the practice court, citing the absence of the associate judge as the reason for the appeal. The legal issues before the court revolved around the application of rule 58.10(8)(b) of the Supreme Court (General Civil Procedure) Rules 2005, which allows for the summary dismissal of an appeal due to the appellant's unexplained absence. The court had to determine whether the appellant had provided a sufficient explanation for their failure to attend court, whether the appeal had any real prospects of success, and if it was futile to set aside the order dismissing the appeal. Additionally, the court considered whether the party benefiting from the order would be prejudiced.

The court examined the appellant's reasons for not attending the hearing, which were deemed insufficient to warrant a re-hearing. The explanation provided by the appellant did not convince the court that their absence was due to circumstances beyond their control. Furthermore, the court found that the appeal did not have any real prospects of success, as the arguments presented were not compelling enough to warrant a reversal of the associate judge's decision. The court also concluded that it would be futile to set aside the order dismissing the appeal, as the appellant's failure to attend the hearing had already resulted in a dismissal. Lastly, the court determined that the party with the benefit of the order would not be prejudiced by the dismissal of the appeal.

The court dismissed the application for a re-hearing of the appeal, affirming the decision of the associate judge. The court found that the appellant had not provided a satisfactory explanation for their absence, and the appeal lacked real prospects of success. Additionally, the court deemed it futile to set aside the order dismissing the appeal, and there was no prejudice to the party with the benefit of the order. Consequently, the appeal was dismissed, and the decision of the associate judge was upheld.

Orders