SELF-REPRESENTED PLAINTIFF WITH MENTAL ILLNESS – Appointment of litigation guardian.
PRACTICE AND PROCEDURE – Order 15, Supreme Court (General Civil Procedure) Rules 2005 – Appointment of litigation guardian – Applicable principles – Self-represented plaintiff ‘incapable by reason of … mental infirmity of managing his … affairs in relation to the proceeding’ – Expert psychiatric evidence – Appointment of plaintiff’s wife as litigation guardian – Dispensation of requirement that litigation guardian be legally represented.
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APPEARANCES:
Counsel
Solicitors
The Plaintiff appeared in person
For the First Defendant
Mr B Ihle
Victorian Government Solicitor
For the Fifth Defendant
Mr R Gipp
Russell Kennedy
TABLE OF CONTENTS
Introduction and summary...................................................................................................... 1
The nature and effect of Mr Slaveski’s psychiatric illnesses........................................... 2 Mr Slaveski is not capable of managing his affairs in relation to this proceeding...... 3 Effect of appointment of a litigation guardian................................................................. 5 Control of the effects of Mr Slaveski’s illnesses through medication........................... 6
Options considered in light of the psychiatrists’ reports.................................................. 6
Appointment of a litigation guardian.................................................................................... 7
Order 15 of the Rules............................................................................................................ 7 Principles regarding appointment of a litigation guardian............................................ 9 Appointment of Mrs Slaveska as litigation guardian.................................................... 14 Concluding comments – special circumstances of this case......................................... 17
This judgment should be read in conjunction with my judgment dated 24 September 2009,[1] which set out in detail various instances of inappropriate behaviour by the plaintiff during the first 22 days of the trial. At the Court’s request, the plaintiff agreed to undergo an independent psychiatric assessment for the purpose of assisting the Court in deciding how to manage the further conduct of the proceeding.
The Court has received reports from an independent forensic psychiatrist, Dr Danny Sullivan, and a consultant psychiatrist, Dr R W Farnbach. Dr Sullivan was selected by Public Interest Law Clearing House (‘PILCH’), which appeared through counsel on 22 September 2009 as a friend of the court, and was engaged by PILCH at the first defendant’s expense. Dr Farnbach, who has previously treated Mr Slaveski, was engaged by Mr Slaveski.
In their reports, the psychiatrists agreed that Mr Slaveski suffers from psychiatric illnesses, although they did not entirely agree on the nature of those illnesses. They each expressed the opinion that, as a result of his illnesses, Mr Slaveski is incapable of managing his affairs in relation to this proceeding. All parties accepted this opinion.
Mr Slaveski applied for an order that his wife, Snezana Slaveska, be appointed his litigation guardian. Mrs Slaveska consented to the appointment and the defendants did not oppose the appointment.
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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AGLC
Slaveski v Victoria [2009] VSC 596
Case
[2009] VSC 596
Decision Date
CaseChat Overview and Summary
The Supreme Court of Victoria was required to determine whether Snezana Slaveska could be appointed as a litigation guardian for Lupco Slaveski, who was representing himself in a case against the State of Victoria and others. The Court had to decide if Mr Slaveski was incapable of managing his affairs in relation to the proceeding due to his mental infirmity and whether Ms Slaveska was a suitable candidate for the role of litigation guardian. The Court also needed to consider the implications of appointing Ms Slaveska as a litigation guardian without legal representation.
The Court found that Mr Slaveski was indeed incapable of managing his affairs in relation to the proceeding due to his mental illnesses, which included generalized anxiety disorder, panic disorder, delusional disorder, and post-traumatic stress disorder. The Court accepted the opinions of two psychiatrists, Dr Danny Sullivan and Dr R W Farnbach, who both concluded that Mr Slaveski was incapable of managing his affairs in relation to the proceeding. The Court also determined that Ms Slaveska was an appropriate candidate for the role of litigation guardian, despite some reservations about her potential lack of independence from Mr Slaveski. The Court decided to appoint Ms Slaveska as Mr Slaveski's litigation guardian and to dispense with the requirement that she be legally represented, based on the unique circumstances of the case and the unavailability of any other suitable candidates. The Court emphasized that its decision should not be applied to other cases without considering the specific circumstances of each case.