Slaveski v Rotstein & Associates Pty Ltd - [2012] VSCA 291

SUPREME COURT OF VICTORIA
COURT OF APPEAL

S APCI 2012 0190

LJUPCO SLAVESKI
	Applicant
v
ROTSTEIN & ASSOCIATES PTY LTD	Respondent

---

JUDGES:	WARREN CJ and MAXWELL P
WHERE HELD:	MELBOURNE
DATE OF HEARING:	16 November 2012
DATE OF JUDGMENT:	16 November 2012
MEDIUM NEUTRAL CITATION:	[2012] VSCA 291

---

ADMINISTRATIVE LAW – Natural justice – Hearing rule – Self‑represented litigant – Respondent sued applicant in Magistrates’ Court for unpaid fees – Applicant appearing for himself – Before hearing completed, applicant left courtroom – Warned by magistrate that case would proceed in his absence – Judgment against applicant – No breach of natural justice – Apprehended bias – No basis for application to trial judge to disqualify himself – Leave to appeal refused.

PRACTICE AND PROCEDURE – Self‑represented litigants – Pro bono representation – Victorian Bar Legal Assistance Scheme – Applicant withdrew instructions just before hearing – Counsel previously instructed then appeared as amicus curiae at Court’s invitation – Counsel made submissions in support of application for leave to appeal – Applicant refused to be present in Court – Unfounded concern about risk to applicant’s safety – Application for leave to appeal heard in applicant’s absence.

APPEARANCES:	Counsel	Solicitors
For the Applicant	No appearance
For the Respondent	Mr R Pedley	Rotstein Commercial Lawyers
Mr K Dernelley with Mr T B Ashton appeared as amicus curiae

WARREN CJ:

I invite his Honour the President to deliver his judgment first.

MAXWELL P:

This is an application for leave to appeal from a judgment of Dixon J in the Trial Division of the Supreme Court, given on 26 September 2012. That, in turn, was the rehearing of an appeal under s 109 of the Magistrates’Court Act 1989 (Vic), first heard by Daly AsJ in November 2011.

In my opinion, leave to appeal should be refused. For the reasons which follow, I do not consider that the decision of Dixon J is attended with sufficient doubt to warrant a grant of leave.

Representation

It is necessary to deal first with the issue of Mr Slaveski’s representation. When the matter was called on for hearing this morning, Mr Dernelley and Mr Ashton of counsel announced an appearance on Mr Slaveski’s behalf. They indicated to the Court that they were appearing pro bono, their representation of Mr Slaveski having been arranged through the Victorian Bar Legal Assistance Scheme.

The taking on of a matter like this pro bono is in accordance with the highest traditions of the Bar. Both counsel are, in my opinion, to be warmly commended for providing their services to Mr Slaveski on a voluntary basis.

We were informed that Mr Slaveski had been away overseas, seeking medical treatment, and had only returned this morning. Mr Dernelley assured us, however, that he had had instructions, both in writing and orally, from Mr Slaveski during the pendency of the pro bono retainer. This morning, however, there was uncertainty about whether counsel’s instructions to appear for Mr Slaveski were maintained. There appears to have been…

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.

Keep reading for free

Create a free CaseChat account to read Slaveski v Rotstein & Associates Pty Ltd and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2012] VSCA 291
Decision Date: 16 November 2012

CaseChat Overview and Summary

In the matter of Slaveski v Rotstein & Associates Pty Ltd, the applicant, appearing without legal representation, contested a judgment entered against him in the Magistrates' Court. The dispute arose from a lawsuit filed by the respondent for unpaid legal fees. The applicant, who had previously withdrawn his instructions from pro bono counsel under the Victorian Bar Legal Assistance Scheme, was self-represented in the proceedings. During the hearing, the applicant left the courtroom, despite being warned by the magistrate that the case would proceed in his absence. Consequently, a judgment was rendered against him.

The court was tasked with determining whether the magistrate's conduct breached the principles of natural justice, particularly the hearing rule, and whether there was any apprehended bias on the part of the trial judge that would warrant his disqualification. Additionally, the court considered whether the applicant's absence during the appeal hearing proceedings impacted the court's ability to assess the application for leave to appeal.

The court found that there was no breach of natural justice as the applicant had been duly warned that the proceedings would continue in his absence. The court also held that there was no basis for the applicant's concerns about bias on the part of the trial judge, and thus no need to disqualify him. Furthermore, the court determined that the applicant's absence during the appeal hearing did not impede the court's ability to hear and decide the application for leave to appeal. Consequently, leave to appeal was refused.

Orders