Slaveski v Rotstein & Associates Pty Ltd
[2012] VSCA 291
•16 November 2012
SUPREME COURT OF VICTORIA
COURT OF APPEAL
S APCI 2012 0190
| LJUPCO SLAVESKI | |
| Applicant | |
| v | |
| ROTSTEIN & ASSOCIATES PTY LTD | Respondent |
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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 | |
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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 no formal withdrawal of instructions but there were
certain matters which Mr Slaveski wished to have put to the Court but which counsel advised him they were not prepared to put. On that basis, counsel regarded themselves as no longer acting with Mr Slaveski’s full authority.
It was unnecessary for us to investigate that matter further because counsel accepted the Chief Justice’s request that they make submissions as amicus curiae. In my respectful opinion, that was a proper course in the circumstances. It was calculated to serve Mr Slaveski’s best interests, because it enabled all of the submissions that were to be made by counsel as representatives of Mr Slaveski to be made to the Court and, further, enabled his application to be prosecuted and disposed of, rather than there being further delay. I found the submissions of considerable assistance and, though I am not persuaded by the grounds of appeal, I do not doubt that everything that could have been said in support of Mr Slaveski’s proposed grounds has been said.
It is also necessary to deal with the matter of Mr Slaveski’s not having been present in Court during today’s hearing. The Court was aware that, before the hearing, Mr Slaveski had expressed a disinclination to be physically present in this Court building. He had made requests for some means of conducting the proceeding that would enable him to be present elsewhere, by video link or by telephone.
In the circumstances, and given that Mr Slaveski was represented by counsel, it seemed appropriate that we enquire with counsel as to the basis of that concern. Mr Dernelley informed us that Mr Slaveski was concerned about his safety and for that reason was unwilling to come into the courtroom.
In response to that expression of concern, the Chief Justice made a number of points which were intended to allay Mr Slaveski’s concerns. The first was that Mr Graeme Spurr, the property manager of the Court with whom Mr Slaveski has had dealings over a long period, would be able to be present, to give Mr Slaveski such assurance as he might need that there was no question whatsoever about his safety.
Secondly, attention was drawn to a letter written to Mr Slaveski by my associate in relation to an incident earlier this year. The letter gave Mr Slaveski an unqualified assurance that he would continue to receive a fair and impartial hearing on any occasion when he appeared in this Court. Thirdly, it was pointed out that Mr Slaveski’s application was being heard by the two most senior judicial officers in the State. All of those matters were put to counsel, in the presence of Mr Slaveski’s wife, in order to give Mr Slaveski complete assurance that any concern about safety was misplaced.
The matter was stood down for the convenience of Mr Slaveski, so that his counsel, and presumably his wife, could discuss those matters with him. In the event, he elected not to come into Court. That was, of course, a decision which it was perfectly open to Mr Slaveski to make. But his perception that his safety is somehow at risk is, in my view, entirely without foundation. His perception is based on an intemperate remark made by a court employee, not by a judge, outside court sitting times. That matter has been investigated and there is no basis whatsoever for a concern that he would be at risk here.
But Mr Slaveski made his judgment and that was entirely a matter for him. It was for that reason that I considered it was entirely appropriate for us to proceed to hear the matter in Mr Slaveski’s absence and to have the arguments in support of the application advanced by counsel who, until a few minutes earlier, had been authorised to appear on Mr Slaveski’s behalf.
The grounds of appeal
The background to this matter is very extensively set out in the reasons of Daly AsJ,[1] and again in the reasons of Dixon J.[2] The proceeding in the Magistrates’ Court was an action by the present respondent, formerly solicitors for Mr Slaveski, who were suing for fees for services rendered while that firm was acting for Mr Slaveski in an action brought against him by the Commonwealth Bank.
[1]Slaveski v Rotstein & Associates Pty Ltd (Unreported, Supreme Court of Victoria, Daly AsJ, 22 June 2012) (‘Reasons’).
[2]Slaveski v Rotstein & Associates Pty Ltd [2012] VSC 435.
Daly AsJ summarised what occurred in the Magistrates’ Court as follows:
When the matter was called on for hearing on 25 July 2011 there was a lengthy exchange between Mr Slaveski and Magistrate Lauritsen, during which Magistrate Lauritsen heard and refused Mr Slaveski’s application to disqualify himself on the ground of bias. His Honour then heard and refused an application by Mr Slaveski to amend the counterclaim to increase the damages claimed to $124,000. Mr Slaveski then complained about the presence of armed Protective Service Officers, following which Mr Slaveski departed. Magistrate Lauritsen then proceeded to hear and determine the proceeding and entered judgment for $100,000 in favour of Rotstein (the amount of the claim, plus interest which had accumulated on the outstanding fees exceeded $100,000, but Rotstein abandoned its claims for any sum in excess of the jurisdictional limit of the Magistrates’ Court) and costs, fixed at $17,516.00.[3]
[3]Reasons, [8].
The grounds of Mr Slaveski’s original appeal to the Supreme Court under s 109 of the Magistrates’ Court Act 1989 (Vic) were as follows:
·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 Lauritsen was bias/in conspiracy, and ordering Registrar John Walsh to take my case from Magistrate Graeme Johnson Court room and take it to Magistrate Lauritsen.
·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 Appellant 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.
The application today was put on two principal bases and a third general basis. The general proposition relied on was that the requirements of a fair hearing as applicable to Mr Slaveski, both before the magistrate and before Dixon J, had to be informed by the fact that Mr Slaveski was a self-represented litigant. I, of course, accept that that is so. Counsel drew our attention to what was said by the Victorian Law Reform Commission in its report on self-represented litigants.[4] Counsel also submitted that what Bell J said in Tomasevic v Travaglini & Anor[5] encompassed the applicable principles and adequately captured the nature of the standard to which a tribunal or judge should aspire in ensuring fairness to a self-represented litigant.
[4]Victorian Law Reform Commission, Civil Justice Review, Report No 14 (1998), Ch 9.
[5][2007] VSC 337.
The two specific grounds concerned, respectively, apprehended bias on the part of Dixon J and a breach of the hearing rule by the magistrate.
Apprehended bias
In relation to the first ground, Dixon J said:
The basis for this application is my response to a question from Mrs Slaveska, who appears for the applicant by my leave, that my superannuation fund holds shares in Commonwealth Bank.
It must necessarily follow that what Mr Slaveski contends is that I do not appear impartial, or that he apprehends bias, in the resolution of his interlocutory application in an appeal from a Magistrates’ Court judgment entered in a proceeding concerning the recovery of costs due for legal services between Mr Slaveski and a firm of solicitors, Rothstein & Associates Pty Ltd.
There it is no direct connection between the Commonwealth Bank and either this application or the Magistrates’ Court proceeding. The initial consideration is why a fair‑minded observer would perceive, or apprehend, bias. The outcome of this case cannot affect the Commonwealth Bank one way or the other. It cannot affect the interest that my superannuation fund holds. There is no basis for a fair minded observer to consider that I am other than disinterested in the issues before me and will decide them according to the facts and the law and no other consideration.
Mrs Slaveska contended that there was a connection by which it might be thought that the bank could benefit from this proceeding. The fees that are the subject of the proceedings in the Magistrates’ Court were charged by Rothstein in the defence of a proceeding in this court between Commonwealth Bank and Mr Slaveski. A conspiracy between the bank and/or its former solicitor, Gadens Lawyers, and Rothstein was asserted. This allegation is scurrilous, unsupported by evidence.
No fair‑minded observer would accept that allegation without some evidence. Even if it was accepted, no fair minded observed could possibly conclude that the bank stood to benefit in some way from the proceeding before the magistrate. There is no connection between the comments that are attributable to a solicitor at Gadens, then representing the Commonwealth Bank - who allegedly said, ‘You'll never win because all the judges have shares in the bank’, - and the bank itself. Neither is there any connection between that statement, if it was made, and I do not accept that it was made, and this application or any issues that arose in the proceeding.
For these reasons, a fair‑minded observer would not for one moment contemplate any apprehension of bias in this application being dealt with by me and the application that I disqualify myself for apprehended bias is rejected.[6]
[6]Slaveski v Rotstein & Associates Pty Ltd [2012] VSC 435, [10]–[15].
In my respectful view, his Honour was right to reject the apprehended bias submission, for the reasons which he gave.
The matter which was said by counsel today to contradict that conclusion was that, in the background of the claim for fees by the respondent firm, there was a suggestion that there might have been some improper relationship — referred to in argument as a ‘conspiracy’ — between the Commonwealth Bank and the respondent. There is nothing in the materials to suggest that any such proposition was ever given any substantive content, let alone that it had any veracity, less still that there was the faintest risk of any such allegation being made out. It is, in my opinion, entirely fanciful to contend that this could have had, or could have been perceived as having, any implications for the Commonwealth Bank, less still for its share price, less still for the value of any shares held by the judge or his superannuation fund.
In my opinion, it is important that issues of conflict of interest be properly identified and that, where there is an appearance of conflict, judges should disqualify themselves — as they invariably do. It is equally important that self‑represented litigants like Mr Slaveski appreciate the integrity and impartiality with which judges approach their task. Apprehended bias is very often raised as a ground by self‑represented litigants and, as this case illustrates, it is almost always groundless.[7]
[7]See, eg, Shaw v Attorney-General for the State of Victoria [2011] VSCA 63.
Failure to afford fair hearing
The second matter concerns what is said to have been the unlawful decision of the magistrate to continue with the hearing after Mr Slaveski had absented himself. This is said to have breached Mr Slaveski’s right to a fair hearing. The circumstances in which that occurred were described both by Daly AsJ and by Dixon J.
The Associate Justice had listened to the entire sound recording of the Magistrates’ Court proceeding. Her Honour’s description of what occurred, based on that recording, was as follows:
After Magistrate Lauritsen gave his ruling on the question of bias, Mr Slaveski complained about the presence of two armed Protective Services Officers (‘PSOs’) in the court room, saying, among other things, he felt threatened by them. He stated that if the PSOs remained, he would leave, and go straight to the Practice Court. He was warned that if he left, the case would proceed in his absence.
Mr Slaveski then made an application to amend his counterclaim to increase his damages claim to $124,000. Magistrate Lauritsen explained that the jurisdictional limit of the Magistrates’ Court was $100,000, and that he would only give leave to amend the counterclaim if Mr Slaveski abandoned any claim to any amount above the jurisdictional limit. Mr Slaveski refused to do so, and complained that the learned magistrate was unfair, as he had previously allowed Rotstein to amend its counterclaim. He renewed his application that the learned magistrate disqualify himself on the grounds of bias. Magistrate Lauritsen refused the application, on the basis that he did not have power to give leave to amend the counterclaim to claim a sum in excess of the jurisdictional limit of the Court.
Mr Slaveski then asked that the matter be stood down while he went to the Supreme Court. He was informed the matter would proceed. Mr Slaveski indicated that he would appoint his wife to represent him in his absence. The learned magistrate then informed him that he would not allow his wife to take part in the proceeding. Mr Slaveski again complained about the presence of the PSOs, questioning ‘why couldn’t they wait outside?’ He then accused the learned magistrate of corruption, and became generally agitated, before departing the court room.
After Mr Slaveski’s departure, the case proceeded. Counsel for Rotstein called Mr Hamish Rotstein, a principal of the firm, to give evidence. Mr Rotstein’s evidence, in summary, was as follows:
(a)Mr Slaveski was referred to his firm by the Law Institute referral service in August 2006, seeking assistance for the defence of the Commonwealth Bank proceeding;
(b)after meeting with Mr Slaveski and his wife, Mr Rotstein sent a letter of engagement and a fee estimate, which included all of the usual information required by the Legal Profession Act2004;
(c)some time later, Mr Rotstein sent a letter with a revised estimate and some draft pleadings. The original estimate was exceeded because of the complexity of the factual issues in the case and the pleadings;
(d)Rotstein rendered a number of tax invoices: to Mr Slaveski and/or Sky Empire;
(e)over the following months there was a lot of correspondence and numerous discussions between Mr Rotstein and Mr Slaveski regarding the payment of Rotstein’s outstanding fees, with various payment arrangements proffered and agreed. Mr Slaveski told him he had financial problems;
(f)on or about 16 November 2012, Mr Rotstein accepted a proposal by Mr Slaveski that he make a payment of $2,000 in respect of unpaid fees, with payments of $500 per week until the outstanding fees were paid in full. Mr Rotstein prepared a letter for documenting this agreement, which contained, among other things, an acknowledgement by Mr Slaveski of his indebtedness to Rotstein. Mr Slaveski signed this letter;
(g)during the course of the retainer, Rotstein carried out the following work in relation to the Commonwealth Bank proceeding: liaised with solicitors and counsel regarding pleading issues, took instructions upon and prepared for further and better particulars, made discovery and inspected the Bank’s discovered documents, and prepared for and represented the defendants at a full day mediation at the end of February 2007;
(h)Mr Slaveski never complained about the quality of work carried out by Rotstein. In December 2006 he brought his family into the office with generous gifts for Mr Rotstein and his staff;
(j)he identified and confirmed the accuracy of the firm’s tax invoices and trust account statements, and that the net amount owing to Rotstein was $71,082.30 ($82,097.30 less payments of $10,175.00);
(k)he confirmed that Mr Slaveski had taken no action to review the fees charged by Rotstein under the Legal Profession Act 2004; and
(l)he confirmed that the entity which was retained by Mr Slaveski now traded under another business name, that Sky Empire had been deregistered, and that, to the best of his knowledge, Mr Slaveski was not an undischarged bankrupt.
Mr Rotstein finished giving his evidence shortly before 1.00pm. At the conclusion of Mr Rotstein’s evidence, Magistrate Lauritsen indicated that he was satisfied that Rotstein had made out its claim, but in the circumstances, he would wait until 2.00 pm to pronounce his orders (that he would allow the claim and strike out the counterclaim for want of prosecution). Counsel for Rotstein submitted that there was no need for further delay, but conceded that he needed more time to work out the applicable figures for interest and costs. There was some discussion between the learned magistrate and counsel for Rotstein regarding Rotstein’s claim in respect of costs. His Honour indicated that he would not allow some items, and requested that counsel recalculate the sum to be awarded in respect of costs to take into account these reductions.
The Court reconvened at 2.03pm. Counsel for Rotstein provided further details of Rotstein’s costs claim. He was interrupted by Ms Snezana Slaveska, who informed the Court that Mr Slaveski had been taken to hospital with chest pains, having been intimidated by the armed PSOs. She handed up a copy of a Notice of Appeal which had just been filed with the Court of Appeal of this Court, seeking to set aside the order made by Macaulay J on 22 July 2011. Magistrate Lauritsen raised with counsel the question of whether he ought defer delivering judgment in this proceeding until after the Court of Appeal had heard and determined the appeal from Macaulay J. Counsel for Rotstein expressed concern that the hearing and determination of this proceeding had already been deferred on a number of occasions. Ms Slaveska submitted that Mr Slaveski’s human rights had been violated.
Magistrate Lauritsen left the bench for approximately 15 minutes to consider the matter of whether he should defer delivering his decision until after the hearing and determination of the appeal in this Court. When he returned to deliver his ruling, he recapitulated the rulings made by him earlier that day, and stated that, given he had heard the proceeding for some time that day, he would make his determination, and if the Court of Appeal allowed the appeal, his judgment would necessarily fall away in consequence. He made orders staying the judgment for sixty days instead of the usual 30 days, having regard to Mr Slaveski’s professed ill-health.[8]
[8]Reasons, [19]–[25].
Daly AsJ’s reasons refer to Mr Slaveski’s evident ability to make submissions cogently and competently in the course of the hearing before the magistrate, as follows:
While … Mr Slaveski was on occasion agitated, he was lucid and focussed during much of the time he was in court.[9]
[9]Ibid [30].
Dixon J also listened to the full recording of the proceeding before the magistrate, describing it as ‘illuminating’.[10] His Honour referred to Mr Slaveski’s conduct in the following terms:
There is some agitation evident, but Mr Slaveski is aggressive and in apparent control of himself and his circumstances. He does not sound scared, fearful, panicky, or in any way constrained in advocating his interests as he perceived them to be. The associate judge aptly described him as ‘lucid and focussed’.[11]
Having heard Mr Slaveski in other proceedings where he made submissions on his own behalf, I have no reason to doubt that he was acting with equal capability in that setting.
[10]Slaveski v Rotstein & Associates Pty Ltd [2012] VSC 435, [27].
[11]Ibid [28].
Dixon J dealt at some length with Mr Slaveski’s complaint that the magistrate should not have proceeded in his absence. What follows is the relevant part of his Honour’s reasons:[12]
[12]Ibid [27]–[34].
The magistrate first heard Mr Slaveski’s application that he disqualify himself on the grounds of actual bias and delivered his reasons for ruling that he would not do so. Immediately after learning that the application had failed, Mr Slaveski demanded of the magistrate that the security guards be asked to leave the court, claiming that ‘I get eyed by them and feel threatened. Why must you do that? I’m just going to pack up my documents and I’ll leave’. The magistrate told Mr Slaveski that the case will proceed. Mr Slaveski restated his demand saying ‘Are you going to threaten me, are you threatening me? Do you people think I am scared? I already sue 23 police officers’. The magistrate again stated that the matter would proceed and Mr Slaveski replied ‘Good I’ll go straight to the Practice Court. Do you think I’m joking? I don’t joke I’ll go straight to the Practice Court’. The magistrate invited Mr Slaveski to take a moment to think about what he was doing. The magistrate again explained that the case would proceed in his absence.
These circumstances are the basis for the agitation and upset from the presence in the courtroom of armed PSO’s referred to in the first ground of the appeal. There is some agitation evident, but Mr Slaveski is aggressive and in apparent control of himself and his circumstances. He does not sound scared, fearful, panicky, or in any way constrained in advocating his interests as he perceived them to be. The associate judge aptly described him as ‘lucid and focussed’.
At this point before the magistrate, Mr Slaveski focussed on the subject of his counterclaim. Before continuing to describe what occurred on the application to amend the counterclaim, I will note Mr Slaveski’s description of those events that I have already related in his affidavit of 19 August 2011 in this proceeding:
I left the courtroom because the magistrates called two Victoria Pro/police (their names officers Stanley and Susan Daley) and they were standing behind me with their guns, and the third one was outside the court, this is because I asked the magistrate to disqualify himself. I asked and requested to the magistrate to get the two Victoria pro/police officers to sit either on the corner of the courtroom, or outside the courtroom where the third one was or to get security with no guns as I am scared to stay near police with guns in their possession, and I have sued the State of Victoria and 23 police members and have been threatened to get killed/shot on numerous occasions Also the reason I am scared is because I suffer from post‑traumatic stress disorder, anxiety and panic disorder, and have been threatened to be shot by police officers on few occasions and that is why I am suing police officers in the Supreme Court, and I feel nervous when I see them or especially when they stand behind me with their guns. After Magistrate Lauritsen rejected and ignored my requests on many occasions, I further requested to the magistrate to allow my wife to take over the case instead of me but he still refused, so I was feeling very dizzy. I took my tablets, to [calm] down, but I was still scared, I was talking and instead of looking at the magistrate, I was talking had my back to the magistrate, and I was looking at the two Victoria pro/police officers, and started to have palpitations on my heart and left the court and told him the magistrate to let my wife take over instead of me, and that I was going to the Supreme Court to complain, which I did …
Mrs Slaveska submitted to me that the crux of the procedural unfairness was that Mr Slaveski said to the magistrate that he was going to leave the court as he didn’t feel safe and that he didn’t feel well, but the magistrate, to his disadvantage, continued with the hearing. Mrs Slaveska submitted these contentions were made out from the CD containing the audio recording of the hearing. This proposition is untenable, demonstrated by examining the circumstances in which Mr Slaveski did leave the court.
The audio transcript before the magistrate reveals that following the exchange in which Mr Slaveski sought to have the security removed from the court, he remained in court and argued, extensively and without apparent anxiety, nervousness or concern about the presence of the PSOs, an application to amend his counterclaim to increase the damages claimed from $98,000 to $124,000. That application took at least 10 minutes, during which period the magistrate patiently explained to Mr Slaveski that the counterclaim could only be entertained if he abandoned the excess above the court’s jurisdiction. Once he appreciated that the amendment would not be allowed, Mr Slaveski renewed his application that the magistrate disqualify himself. That application was again refused, the magistrate explaining his reasons for that refusal. These are the circumstances that support the fourth matter, referred to as a ground not specifically raised in the notice of appeal.
Mr Slaveski then asked that the proceeding be stood down while he went to the Supreme Court. The magistrate again explained that the matter would not be stood down but would continue in his absence. Mr Slaveski asked that Mrs Slaveska stay and conduct the proceeding for him, which was refused. It is pertinent to record that Mr Slaveski did not want Mrs Slaveska to stay and conduct his defence because he was suffering health problems and disability. There was no mention of such matters and no possible indication to the magistrate of such matters by inference from what occurred in court. The magistrate did not and would not have reasonably drawn such an inference from the conduct I have set out above … These are the circumstances that support the second ground of appeal.
It took some time for Mr Slaveski to leave the court, and during that period the magistrate courteously invited him to make up his mind whether he wanted to stay or leave. Although he briefly referred again to the presence of the two PSOs, at no stage since the matter had first been raised did he express concern about the presence of the PSOs or state to the magistrate that he was feeling anxious, panicking, nervous, feeling dizzy, or in any other way unable to continue with the proceeding.
Although I was concerned, having regard to Mr Slaveski’s well documented concerns, that he may have been denied procedural fairness by the presence of armed PSOs in court restricting his capacity to fairly present his arguments and evidence, the transcript of proceedings before the magistrate makes it plain that Mr Slaveski was not so impeded or hampered before the magistrate. Further, Mr Slaveski’s position is not helped by comparing his affidavits filed in support of the appeal with that transcript.
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.
Accordingly, I would refuse leave.
WARREN CJ:
I agree with the President’s reasons.
Supplementary reasons
After the hearing had concluded and orders had been made, I was informed that Mr Slaveski had, during the lunch break, sent an email to the Court, purporting to be an application for me to disqualify myself. This application was in the following terms:
I told the two Barristers to ask the Chief Justice To Disqualify her self from hearing my case because She is bias, she prolonged my appeal while I was in Custody and made me spend 2 months in prison Where I was denied my medical needs She will be bias against me The barristers refused to ask you that. Now I am Formally Asking you to disqualify your self from my case.
As the President has explained, Mr Slaveski absented himself, for his own reasons, from the hearing of the application for leave to appeal. As a result, no disqualification application was made before the application was heard and determined. Had such an application been made, I would have rejected it. There was no foundation for it.
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