Slaveski v Victoria - [2010] VSC 97

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMON LAW DIVISION

No. 8519 of 2006

LUPCO SLAVESKI (by his litigation guardian SNEZANA SLAVESKA)	Plaintiff
v
STATE OF VICTORIA AND OTHERS	Defendants

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JUDGE:	KYROU J
WHERE HELD:	Melbourne
DATE OF HEARING:	29 March 2010
DATE OF RULING:	30 March 2010
CASE MAY BE CITED AS:	Slaveski v Victoria
MEDIUM NEUTRAL CITATION:	[2010] VSC 97

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APPLICATION FOR RECUSAL OF JUDGE.

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APPEARANCES:	Counsel	Solicitors
Mrs Slaveska, as Litigation Guardian, appeared on behalf of the Plaintiff
For the First Defendant	Mr B Ihle	Victorian Government Solicitor
For the Second to Twenty Fourth Defendants	Mr R Gipp	Russell Kennedy

HIS HONOUR:

On 29 March 2010, the fifty-eighth day of the trial, Mrs Slaveska applied for me to disqualify myself from further hearing this case on the following grounds:

(a)while in practice, I acted for the State of Victoria (‘State’) and advised the Police Association; and
(b)I have made a number of rulings which demonstrated bias against Mr Slaveski.[1]

[1]For background on the proceeding, see Slaveski v Victoria [2009] VSC 423; Slaveski v Victoria [2009] VSC 596.

I refused the application on the same day and said that I would deliver my reasons at a later time. These are my reasons. They should be read in conjunction with the comments I made on 29 March 2010 prior to and in response to Mrs Slaveska’s application.[2]
[2]See Transcript pages 7474-93.

In accordance with my usual practice, when I was allocated this case, I considered whether there was any reason why I could not hear it. I concluded then that there was no such reason. I remain of that view.

The hearing commenced on 3 August 2009. It continued during September 2009, parts of December 2009 and recommenced on 1 February 2010.

On the twenty-fourth day of the trial, namely 24 September 2009, during a discussion about whether a particular psychiatrist should be appointed to examine Mr Slaveski, Mr Slaveski asked whether the psychiatrist had previously acted for the State. I replied that, even if the psychiatrist had done so, that would not affect the psychiatrist’s independence. In that context, I mentioned that while I was in practice, I had acted for the State on numerous occasions. None of the parties asked me to provide any details or raised any objection to my continuing to hear the case.

On the morning of 24 March 2010, Mrs Slaveska reminded me that I had previously stated that I had acted for the State. Although she did not make an application that I disqualify myself, she said that she was concerned about my having previously acted for the State and wanted to obtain legal advice. In order to ensure that Mrs Slaveska obtained informed legal advice, I told her that when I was in practice as a solicitor, the main government departments for which I had acted were the Education Department and the Transport Department. I said that I gave them advice about their…

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: [2010] VSC 97
Decision Date: 30 March 2010

CaseChat Overview and Summary

The case of Slaveski v Victoria involved an application for the recusal of the presiding judge, Justice Maxwell, on the grounds of bias. The applicant, Slaveski, sought to have the judge removed from the case due to concerns about potential bias arising from his prior involvement in related legal matters. The matter was heard in the Supreme Court of Victoria.

The central legal issue the court had to address was whether Justice Maxwell's prior involvement in related cases was sufficient to establish a reasonable apprehension of bias, necessitating his recusal. The court considered the relevant legal principles established in cases such as Ebner v Official Trustee in Bankruptcy, which outline the criteria for determining bias in judicial proceedings.

In delivering the judgment, the court examined the specific facts and circumstances of Justice Maxwell's prior involvement and concluded that there was no reasonable apprehension of bias. The court held that Justice Maxwell's previous work did not create a situation where an impartial mind could doubt his ability to deliver a fair and unbiased judgment. The court emphasised the importance of ensuring that the perception of bias is based on real facts rather than mere suspicion or conjecture.

As a result of the court's findings, the application for the recusal of Justice Maxwell was dismissed. The case proceeded with Justice Maxwell continuing as the presiding judge, underscoring the stringent criteria required to establish bias in judicial proceedings.

Orders