Slaveski v Victoria

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMON LAW DIVISION No. 8519 of 2006

LUPCO SLAVESKI	Plaintiff
v
STATE OF VICTORIA AND OTHERS	Defendants

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JUDGE:	KYROU J
WHERE HELD:	MELBOURNE
DATE OF HEARING:	3-6, 11-13, 17-19, 24-25, 31 August, 1-2, 7-11, 14-15 and 22 September 2009
DATE OF JUDGMENT:	24 September 2009
CASE MAY BE CITED AS:	Slaveski v Victoria
MEDIUM NEUTRAL CITATION:	[2009] VSC 423

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SELF-REPRESENTED PLAINTIFF WITH APPARENT MENTAL ILLNESS – threatening, abusive and disobedient behaviour – attempted overdose of medication during hearing – risk of harm to persons in court including the plaintiff – disruption and delay arising from plaintiff’s behaviour.

PRACTICE AND PROCEDURE – inherent jurisdiction of court to stay or dismiss proceeding without adjudication on the merits – when jurisdiction exercisable.

PRACTICE AND PROCEDURE – Order 15 of the Supreme Court (General Civil Procedure) Rules 2005 (Vic) – appointment of litigation guardian – adjournment of hearing pending receipt of independent psychiatric report.

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APPEARANCES:	Counsel	Solicitors
The Plaintiff appeared in person
For the First Defendant	Mr B Ihle	Victorian Government Solicitor
For the Second to Twentieth Defendants	Mr R Gipp	Russell Kennedy
Friends of the Court (on 22 September 2009 only)	Mr J Wilson SC, with Mr T Scotter instructed by Public Interest Law Clearing House
Mr E Alstergren, Ms A Golding, Mr J Warren and Mr J Gottschall in accordance with the Victorian Bar Duty Barristers Scheme

TABLE OF CONTENTS

Introduction............................................................................................................................... 1

The proceeding.......................................................................................................................... 2

Parties and causes of action............................................................................................... 2
Summary of claims.............................................................................................................. 2
Length and complexity of the proceeding....................................................................... 4

Mr Slaveski’s apparent mental illness................................................................................. 5

How the proceeding has been conducted............................................................................ 5

Inappropriate behaviour and warnings given to Mr Slaveski........................................ 7

Day 1 of the trial: 3 August 2009...................................................................................... 7
Day 5 of the trial: 11 August 2009.................................................................................. 10
Day 12 of the trial: 25 August 2009................................................................................ 17
Day 13 of the trial: 31 August 2009................................................................................ 23
Day 14 of the trial: 1 September 2009............................................................................. 27
Day 15 of the trial: 2 September 2009............................................................................. 33
Day 16 of the trial: 7 September 2009............................................................................. 37
Day 17 of the trial: 8 September 2009............................................................................. 45
Day 18 of the trial: 9 September 2009............................................................................. 52
Day 22 of the trial: 15 September 2009........................................................................... 59

Hearing on 22 September 2009............................................................................................. 84

Stay or dismissal of a proceeding without an adjudication on the merits................ 85
Appointment of litigation guardian............................................................................... 88

Tentative concerns about Mr Slaveski’s capacity to manage this proceeding............... 88
The need for expert psychiatric evidence........................................................................ 91
Adjournment pending receipt of psychiatric report....................................................... 92

HIS HONOUR:

Introduction

These are my reasons for the decision I made on 22 September 2009 not to make an order staying this proceeding at that stage and to order instead that the substantive hearing be adjourned until 1 February 2010 to allow the plaintiff, Lupco Slaveski, to submit to a consensual independent psychiatric assessment. The psychiatrist’s evidence will assist the Court in deciding how the hearing of this proceeding should continue having regard to the threatening, abusive and disobedient behaviour of Mr Slaveski, who apparently suffers from a mental illness and who has been representing himself since the trial began on 3 August 2009.

Matters came to a head on the twenty-second day of the trial, namely 15 September 2009. Just before lunch on that day, counsel for the second to twentieth defendants, Mr Gipp, was cross-examining Mr Slaveski’s wife, Snezana Slaveska, about whether he had overdosed on 10 Xanax tablets on 12 July 2006. Mr Slaveski became agitated and behaved in a threatening manner towards Mr Gipp. He first shouted ‘Maybe you should take ten Xanax for your children’.[1] Later, after shouting ‘Would you – would you fucker – would you like me to take ten Xanax now?’, he picked up his pill box and placed the entire contents in his mouth.[2] He eventually spat out nearly all of the tablets after Mrs Slaveska leapt to his aid. At my request, my associate called an ambulance. I adjourned the Court as Mr Slaveski was escorted out of Court by Mrs Slaveska and two protective services officers.
[1]Transcript, 2554.
[2]Transcript, 2556-8.

When the Court resumed in the afternoon, I adjourned the hearing to 22 September 2009 to give the parties an opportunity to prepare submissions on the future conduct of the proceeding. I also encouraged Mr and Mrs Slaveski to seek assistance from the Victorian Bar under its Duty Barristers Scheme, the Public Advocate and other sources. Subsequently, on 17 September 2009, I raised on my own motion the issues of a stay of the proceeding and the appointment of a litigation guardian, and invited the parties to make submissions on those issues on 22 September 2009. What occurred on 22 September 2009 is discussed later in these reasons.

The events of 15 September 2009 were preceded by a series of episodes involving inappropriate behaviour by Mr Slaveski which are described in detail later in these reasons.

The proceeding
Parties and causes of action

Mr Slaveski has sued 19 present or former police officers (‘police defendants’) and the State of Victoria seeking damages for various causes of action including assault and battery, wrongful arrest, false imprisonment, malicious prosecution, defamation, trespass to land, trespass to goods and negligence.

The claims against the police defendants arise out of 13 incidents that Mr Slaveski alleges occurred between 8 September 2000 and 7 May 2007. All of the officers were apparently based at the Epping or Mill Park police stations at or prior to the time of the incidents. In addition, a general claim in negligence has been made against one of the police defendants, Phil Lowerson.

The claim against the State is made under s 123(2) of the Police Regulation Act 1958 (Vic), which makes provision for a form of vicarious liability. It is alleged that the State is liable for any liability of the police defendants.

Summary of claims

The 13 incidents and the claim against officer Lowerson, as described in Mr Slaveski’s further amended statement of claim, are briefly summarised below.

First incident – 8 September 2000. Mr Slaveski alleges that officers Bingham, Smithwick, Kirkright, Cole, Wheeler, Roberts, Robinson, Stephen, Rhodes and Barton entered his shop at 10 May Road, Lalor (‘Lalor shop’), unlawfully assaulted him, handcuffed him and took him into custody, and also damaged merchandise in the shop.

Second incident – December 2003. Mr Slaveski alleges that officer Peck entered the Lalor shop and unlawfully demanded payment on behalf of ‘The Good Guys’ retail store.

Third incident – March 2004. Mr Slaveski alleges that officers Jones and Peck entered the Lalor shop and unlawfully demanded items that had been left by Aneli Manevska as security for a loan.

Fourth incident – 22 June 2005. Mr Slaveski alleges that officer Nolan said to a member of the public at the Mill Park police station (Ray Rivett), in the presence of Mr and Mrs Slaveski and others, words to the effect that Mr Slaveski is ‘the biggest criminal in the area’.

Fifth incident – 13 December 2005. Mr Slaveski alleges that officers Kirkright, Cole, Sadler, Tennyson and Baade unlawfully arrested and handcuffed him outside the Lalor shop, escorted him into the shop and conducted an unlawful search for documents and other items.

Sixth incident – 17 January 2006. Mr Slaveski alleges that officer Tennyson stalked him and made threatening hand gestures outside the Lalor shop.

Seventh incident – 8 June 2006. Mr Slaveski alleges that, while he was in the Children’s Court of Victoria waiting to be called to give evidence against officer Parker in proceedings being conducted at that Court, officer Parker requested security guards to eject him unlawfully from the Court.

Eighth incident – 12 July 2006. Mr Slaveski alleges that officer Parker stalked him and made threatening hand gestures outside the Lalor shop.

Ninth incident – 13 July 2006. Mr Slaveski alleges that, while he was in the Children’s Court waiting to give evidence against officer Parker in proceedings being conducted at that Court, officer Parker requested security guards to eject him unlawfully from the Court.

Tenth incident – 20 July 2006. Mr Slaveski alleges that, while he and Mrs Slaveska were at the Epping Plaza Shopping Centre, officer Parker followed them in circumstances constituting an assault.

Eleventh incident – 14 August 2006. Mr Slaveski alleges that, while he and Mrs Slaveska were at the Epping Plaza Shopping Centre, officer Parker followed them in circumstances constituting an assault.

Twelfth incident – 29 January 2007. Mr Slaveski alleges that officer Smith unlawfully arrested him, took him into custody and maliciously charged him with stalking officer Parker on 13 July 2006.

Thirteenth incident – 7 May 2007. Mr Slaveski alleges that officer Peck said to him over the telephone words to the effect ‘Anybody can get shot these days, anytime, anywhere’.

Claim against officer Lowerson. Mr Slaveski alleges that officer Lowerson owed to him a duty to take reasonable care for his safety and that officer Lowerson breached that duty by, among other things, failing to prevent the other police defendants from committing wrongful acts against him and failing to investigate claims of harassing and unwelcome telephone calls received by him.

Mr Slaveski claims damages for loss of earnings, loss of earning capacity, medical expenses and general damages. He also claims aggravated and exemplary damages.

In their defences, the defendants deny or do not admit most of the allegations in the further amended statement of claim and also rely on some substantive defences.

Length and complexity of the proceeding

As Mr Slaveski’s claims relate to 13 separate incidents over a period of more than six years, involve 20 defendants and rely on numerous causes of action, they raise an array of complex factual and legal issues. These issues include medical issues relating to Mr Slaveski’s medical condition, accounting issues relating to the performance of his businesses and causation issues, namely whether the defendants’ alleged conduct has caused the loss and damage claimed by Mr Slaveski.

The hearing has already extended over 22 days and the evidence of Mr Slaveski’s first main witness, Mrs Slaveska,[3] has not yet concluded. It is expected that Mr Slaveski and each of the police defendants will give evidence. It is also expected that there will be evidence from numerous other witnesses in relation to the 13 incidents as well as evidence from medical and accounting experts.
[3]Mrs Slaveska was called as the first witness because Mr Slaveski wanted her to be in Court when he gave evidence.

The proceeding was originally listed for hearing with an estimated duration of six weeks. If it continues along the lines of the first 22 days, with Mr Slaveski representing himself and behaving in the manner he has behaved to date, the hearing could take another five months.

Mr Slaveski’s apparent mental illness

In his amended statement of claim, Mr Slaveski alleges that he has suffered from a number of physical and mental ailments, including anxiety, panic attacks and depression, and that these physical and mental ailments were caused by the conduct of the police defendants. Mr Slaveski has informed the Court that he has previously been treated by a psychiatrist and that he is taking medication. The precise nature of Mr Slaveski’s apparent mental illness and the medication he is taking has not been the subject of evidence. He has said that he is receiving a disability pension.

How the proceeding has been conducted

The trial commenced on 3 August 2009. There were a number of disruptions to the hearing days between 3 August 2009 and 15 September 2009 for various reasons which are not presently relevant.

Mr Slaveski represented himself throughout the trial, assisted by Mrs Slaveska as a McKenzie friend.[4] I permitted Mr Slaveski to wear casual clothing (such as T‑shirts and track pants) because he told me that he felt constrained in a suit. I also gave Mr Slaveski short breaks twice daily – and sometimes more frequently – at his request, to help him cope with the trial process.
[4]McKenzie v McKenzie [1971] P 33.

Mr Slaveski called his first witness, Mrs Slaveska, on 3 August 2009. On the afternoon of the fifth day of the trial, 11 August 2009, another witness, Dimitrija Tancevski, was interposed. Mrs Slaveska finished her evidence-in-chief on the fifteenth day of the trial, 2 September 2009. Her cross-examination commenced on the sixteenth day of the trial, 7 September 2009, and was continuing on 15 September 2009, the twenty-second day of the trial.

From the first day of the hearing, Mr Slaveski has behaved erratically. Throughout the trial, his behaviour varied from the polite and tearful to the abusive and threatening. These wild mood swings appeared to depend on a variety of circumstances, including whether he had taken his medication and its dosage, and whether he liked the questions the witnesses were being asked and the answers that they gave. His behaviour deteriorated after Mr Gipp began cross-examining Mrs Slaveska on 7 September 2009.

There were outbursts from Mr Slaveski from time to time. He made rambling speeches from the Bar table and sometimes would not stop when requested to do so. He often raised unnecessary objections and sometimes argued with me when I ruled that there was no basis for an objection. On several occasions, he was abusive and disrespectful to counsel for the defendants, even though they were very patient and helpfully limited their objections to the admissibility of questions and documents. For example, they did not object to Mr Slaveski asking Mrs Slaveska many leading questions and Mrs Slaveska giving extensive hearsay evidence. At times, Mr Slaveski was disrespectful towards me.

My approach to dealing with Mr Slaveski’s unruly behaviour was to adjourn briefly to allow him to calm down and, upon resuming, to explain his rights and obligations before proceeding with the trial. I also overlooked his unconventional behaviour such as the hanging of Eastern Orthodox icons from his microphone on the Bar table and making the sign of the cross and thanking God whenever something occurred which he perceived to be favourable to his case.

In fairness to Mr Slaveski, it should be said in his favour that there were many occasions during the hearing where he was courteous, co-operative and focused on the relevant issues in the proceeding. These peaceful and productive periods, however, were overshadowed by Mr Slaveski’s inappropriate behaviour when he lost his self-control.

I have set out the above matters at this point not to denigrate Mr Slaveski but to convey something of the tension, volatility and farce that at times characterised the trial, and to provide general background to the detailed discussion of specific episodes of inappropriate behaviour that now follows.

Inappropriate behaviour and warnings given to Mr Slaveski

Set out below, in chronological order, are details of episodes involving inappropriate behaviour by Mr Slaveski and advice and warnings that I gave him in the course of the trial. I have felt it necessary to set out relevant parts of the transcript at length in order to provide context and to capture the atmosphere in the Court room at the time of the episodes.[5]

Day 1 of the trial: 3 August 2009

[5]I have made minor corrections to the transcript to deal with obvious errors, to avoid confusion and to provide context. Generally, the corrections are denoted by square brackets or ellipses.

On the first day of the trial, a number of preliminary issues were discussed, including an application by counsel for the State, Mr Ihle, to set aside three subpoenas that Mr Slaveski had filed addressed to the former Chief Commissioner of Police and two other senior police officers who are not parties to the proceeding. When this application was made, Mr Slaveski became agitated and argumentative. I explained that he was required to be respectful. This is reflected on pages 25 to 27 and 30 to 31 of the transcript, relevant parts of which are set out below:

HIS HONOUR: … At the moment what I'm seeking your agreement to is that the time for them to attend court, pursuant to the subpoena, is put off until - - -
MR SLAVESKI: That's OK.
HIS HONOUR: - - - we can have a discussion about whether - - -
MR SLAVESKI: Yes, that's fine.
HIS HONOUR: - - - the subpoenas are proper. If I find that they are proper, then we can decide what date they should attend.
MR SLAVESKI: That's OK.
HIS HONOUR: If I decide they're not proper, then they won't have to attend. But at the moment - - -
MR SLAVESKI: Then I probably have to make an urgent application Your Honour, with all due respect, on top of you - - -
HIS HONOUR: Well - - -
MR SLAVESKI: - - - no, but just a minute Your Honour, you - - -
HIS HONOUR: Let's not - - -
MR SLAVESKI: - - - no, because Your Honour, I have three
HIS HONOUR: Just - - -
MR SLAVESKI: - - - so this cowboys - - -
HIS HONOUR: Mr Slaveski?
MR SLAVESKI: - - - are coming into my property, they're bashing me up - - -
HIS HONOUR: Mr Slaveski?
MR SLAVESKI: - - - they are liable to come here and answer to you.
HIS HONOUR: Mr Slaveski? Mr Slaveski, let's just calm down please?
MR SLAVESKI: So - yes, this is her signature here.
HIS HONOUR: Mr Slaveski, now there are some very basic rules - - -
MR SLAVESKI: Yes, of course.
HIS HONOUR: - - - we need to all comply with in this court.
MR SLAVESKI: But Your Honour, with all due - which they can all hide behind these people.
HIS HONOUR: Just one second. Just one second.
MR SLAVESKI: Sorry, yes.
HIS HONOUR: There's really one rule and that rule is this, that everyone respects everyone else's role.
MR SLAVESKI: Yes.
HIS HONOUR: Also, that when someone speaks, everyone else listens.
MR SLAVESKI: I apologise for that Your Honour.

HIS HONOUR: And when I speak, no one else speaks.
MR SLAVESKI: I apologise greatly, Your Honour.
HIS HONOUR: So when you start speaking and I ask you to stop - - -
MR SLAVESKI: OK.
HIS HONOUR: - - - no matter how important you think what you're about to say is, you stop.
MR SLAVESKI: OK.
HIS HONOUR: And you listen to me. Now all I'm asking is for the issue of whether these subpoenas are appropriate, to be debated not today but another day - soon. It will be this week sometime.
…
HIS HONOUR: This proceeding is going to be conducted subject to those very basic rules that I mentioned.
MR SLAVESKI: Yes.
HIS HONOUR: So when I interrupt you, you must stop and listen to me.
MR SLAVESKI: I will certainly do that, Your Honour.
HIS HONOUR: And I can guarantee that this hearing [will] be conducted fairly.
MR SLAVESKI: That is all I ask for, 50/50, Your Honour.
HIS HONOUR: Yes, you will get a fair hearing.
MR SLAVESKI: Thank you.
HIS HONOUR: But it's not just a fair hearing to you. It's a fair hearing to everybody.
MR SLAVESKI: Yes.
HIS HONOUR: Because that's what court proceedings are all about.
MR SLAVESKI: I certainly agree with that.
HIS HONOUR: So everyone will have a chance to present their case, and I'll certainly listen. I have a completely open mind, and so things will work out much smoother and proceed more efficiently if we follow those basic rules.
MR SLAVESKI: I agree with you, Your Honour.
HIS HONOUR: And if ever you, for medical or other reasons, need a break, all you have to do is say so and we will organise that.
MR SLAVESKI: I much appreciate it. Thank you, Your Honour. And if I went that way, I apologise.
HIS HONOUR: That's fine, Mr Slaveski. I'm not easily offended.

Day 5 of the trial: 11 August 2009

On 11 August 2009, Mr Slaveski became quarrelsome when re-examining Mr Tancevski in relation to the events at the Melbourne Magistrates’ Court on 31 August 2007. Mr Tancevski had attended the Melbourne Magistrates’ Court on that day as a potential witness but was not called by Mr Slaveski’s lawyers. Mr Slaveski was critical of his lawyers’ conduct of his case, particularly in relation to their forensic management of video footage taken from a security camera at the Children’s Court on 13 July 2006 – being the date of the ninth incident – which Mr Slaveski believes was tampered with by the police. Mr Slaveski’s inappropriate behaviour is reflected on pages 586 to 597 of the transcript, relevant parts of which are set out below:

[Mr SLAVESKI:] OK. Do you remember Paul Smith, the detective going like this and like this and threats to kill Glenn Parker with a newspaper, do you remember this?---Yes, this paper.
You know this paper?---This paper.
Just a minute, sorry, Mr Char. Did I have papers like this or have the big paper?---Big paper.
Big paper. Can you tell the judge which paper I had and tell these gentlemen here please. This paper?---Yes.
So I didn't have this paper did I?
HIS HONOUR: Sorry, Mr Slaveski. Please do not shout.
MR SLAVESKI: So I didn't have this paper did I?---No.
HIS HONOUR: Mr Slaveski?
MR SLAVESKI: OK.
HIS HONOUR: Please do not shout. We can all hear you.
MR SLAVESKI: Good, thank you sir. Now do you remember coming for four days, Mr Tancevski?---Four or five days.
Four or five days you come. Do you remember one day I say - sorry, Your Honour, I say to the barrister "Listen you dog, you are selling me to the police" and me arguing outside and I chucked the video off the floor?---Yes.
I said "Tell this to the judge" do you remember that?---Yes I remember.
You swear to God?---I swear to God.
…
MR SLAVESKI: That video footage was edited - edited Your Honour.
…
HIS HONOUR: … What I'm going to ask you is this. You are the one who investigated whether the video was - - -
MR SLAVESKI: That's correct.
HIS HONOUR: - - - tampered with.
MR SLAVESKI: Tampered with.
HIS HONOUR: And you will give evidence about the tampering, is that correct?
MR SLAVESKI: Well I will be doing that when Snezana comes in. She saw some of the video footage.
HIS HONOUR: Yes.
MR SLAVESKI: And that - that's the reason of this monitor and all of that - -
HIS HONOUR: I appreciate that, and certainly you will be able to do that later, what you've asked this witness and what this witness has confirmed is that he was present when you were discussing these issues with your lawyers.
MR SLAVESKI: That's it.
HIS HONOUR: And you were complaining about - - -
MR SLAVESKI: To play the video footage.
HIS HONOUR: Because you wanted them to and they decided not to.
MR SLAVESKI: And then my witnesses - my witness came, Daren Scott, they didn't call him as a witness.
HIS HONOUR: And they - - -
MR SLAVESKI: Mr Dimitrija Tancevski came for four days, he was kept outside for four days.
HIS HONOUR: And they didn't call him?
MR SLAVESKI: Will call him - he was never called.
HIS HONOUR: I understand that.
MR SLAVESKI: So, this is what I'm saying to Your Honour. And then, that magistrate was favouring the police and after it was far too late to play the video footage and to produce this.
HIS HONOUR: All right. But you - - -
MR SLAVESKI: It was never played.
HIS HONOUR: But you will play it here.
MR SLAVESKI: I will play it here.
HIS HONOUR: All right.
MR SLAVESKI: That's the reason that we are here.
HIS HONOUR: I understand that.
MR SLAVESKI: But I don't like Mr Gipp torturing the stand that he didn't come to give evidence and all of that crap. It's not fair, Your Honour.
HIS HONOUR: Well, Mr Slaveski, just take it one step at a time. What Mr Gipp asked the witness was did he give evidence.
MR SLAVESKI: It's the way he said it, Your Honour. He was waiting – he could have phrased it – he was coming – the old man, for four days.
HIS HONOUR: But Mr Slaveski, Mr Gipp is entitled to ask the question and this witness is obliged to answer and if he doesn't understand it, to ask for an explanation. So, where we've got to is that you have obtained from Mr Tancevski, evidence that although he was called – although he attended the court and was ready to give [evidence], he was not called - - -
MR SLAVESKI: He was not called by my legal team.
HIS HONOUR: - - - and that's something – and you're not happy with that.
MR SLAVESKI: Because I was set up to gain custody.
HIS HONOUR: All right.
MR SLAVESKI: Because I was a witness against a corrupted copper threats to kill me – the newspaper.
HIS HONOUR: I understand that.
MR SLAVESKI: That's my – that's what Mr Tancevski is virtually saying if you understand his picture, Your Honour.
HIS HONOUR: Yes.
MR SLAVESKI: That is all he's saying.
HIS HONOUR: All right. Now, have you finished with the witness?
MR SLAVESKI: No, I just – Mr Tancevski – just one more thing, Your Honour.
HIS HONOUR: Sure.
MR SLAVESKI: Did I tell the barrister, Richard Edney, Your Honour – his name was Richard Edney. A dog that sold me to the police and I'm not for sale for any millions of dollars anymore. Do you remember me arguing with him and telling him, "Did you get interpreter for Mr Tancevski?" Did the interpreter come?---No.
No. So, there was no interpreter for you and you were a very valuable witness?---I'm a bit upset, this time.
HIS HONOUR: Yes.
MR SLAVESKI: So, there was no interpreter for you?---Call me today to tell me, I call you tomorrow.
So, he said, "I'll call you tomorrow"?---(Indistinct) call me tomorrow.
HIS HONOUR: But you were never called as a - - -?---No, no called. I everyday come and - - -
All right. I understand what - - -
MR SLAVESKI: So, that's - - - -
HIS HONOUR: I understand.
MR SLAVESKI: - - - - that's - I kept on telling him outside, "Where's the interpreter?" "He's going to come later, tomorrow." It was all a set up – a plan, Your Honour.
HIS HONOUR: Mr Slaveski, I understand - - -
MR SLAVESKI: That's my - - -
HIS HONOUR: - - - your - - -
MR SLAVESKI: Because Mr Gipp was not there, therefore he should – he should be cautious with the - - -
HIS HONOUR: Well, this is how the system works, Mr Slaveski.
MR SLAVESKI: Well, I will torture his witnesses on the stand as well. Don't you worry.
HIS HONOUR: Well, you can ask questions but - - -
MR SLAVESKI: Yes, my heart will pump. Don't worry.
HIS HONOUR: You see, Mr Slaveski, Mr Gipp asked him, "Were you called?" And he said, "I went there but I was not called as a witness." And you asked him why and he's now explained that so, that's perfectly fine. He's given an explanation because your - - -
MR SLAVESKI: These people, Your Honour – people with evidence.
HIS HONOUR: Yes, I understand - - -
MR SLAVESKI: They – they - -
HIS HONOUR: We'll get to - - -
MR SLAVESKI: Look at the – 13 Your Honour, I'm sorry. I've got to say this please. Thirteen – 13 July 2006 and I get arrested after seven months. I took them seven months to make a movie out of me so they can tamper – eight minutes movie they did.
HIS HONOUR: Yes.
MR SLAVESKI: And that will show – that will be shown.
HIS HONOUR: Well, I'm looking forward to seeing it.
MR SLAVESKI: Yes. And you know what? I will take it step by step - - -
HIS HONOUR: Of course.
MR SLAVESKI: - - - a second by second - - -
HIS HONOUR: You're entitled - - -
MR SLAVESKI: - - - a minute by minute.
HIS HONOUR: All right, Mr Slaveski.
MR SLAVESKI: I need this.
HIS HONOUR: All right. Sit down please.
MR SLAVESKI: Thank you, sir.
HIS HONOUR: Now, I was just going to explain to you and you really need to let me finish - - -
MR SLAVESKI: Yes, Your Honour. I'm sorry.
HIS HONOUR: - - - because you have your go - - -
MR SLAVESKI: Of course.
HIS HONOUR: - - - and then I have my go - - -
MR SLAVESKI: Of course.
HIS HONOUR: - - - and then we move on.
MR SLAVESKI: Yes.
HIS HONOUR: Now, you need to remain calm because we will get through the case more efficiently if you do.
MR SLAVESKI: I don't like corruption, Your Honour.
HIS HONOUR: Neither do I. Sit down please.
MR SLAVESKI: Well, Your Honour, he should not ask questions - - -
HIS HONOUR: Mr Slaveski - - -
MR SLAVESKI: - - - like that. It's ridiculous. It's stupidity.
HIS HONOUR: Mr Slaveski, sit down please.
MR SLAVESKI: Thank you.
HIS HONOUR: Now, I'm just going to explain to you – this again, because I don't want this happening with other witnesses. All right. It's very important that you listen. Mr Gipp or Mr Ihle is entitled to ask the witness questions. All right. Now, if the witness doesn't understand, they'll say so. If the witness gives an incomplete answer, you can ask for clarification. And what you did now was – apart from you getting a little bit excited, was perfectly all right because Mr Gipp asked a question, "Were you called to give evidence?" He said that, "I went there but they never called me." And you explained that the reason for that was because your lawyers didn't call him and that's fine. That's exactly - - -
MR SLAVESKI: Because they were told by the police not to be called, Your Honour.
HIS HONOUR: Well - - -
MR SLAVESKI: That's why I sacked these barristers.
HIS HONOUR: I understand that you say that it's a set up.
MR SLAVESKI: Of course it was a set up.
HIS HONOUR: Yes. Have you finished with the witness now?
MR SLAVESKI: I certainly did and I'm sorry, Mr Tancevski and I apologise to the court but not to the other party.
HIS HONOUR: Well, let's move on.
MR SLAVESKI: I'm sorry, Your Honour.
…
MR SLAVESKI: … I would like – with all due respect, Your Honour, that particular video footage, if that has been edited, I would like superior people, professional people to examine that.
HIS HONOUR: Well, that's up to you, Mr Slaveski.
MR SLAVESKI: Well, it certainly is up to me because we are sick of this corruption. You know, I already have - Daren Scott from Channel 9 came four times and the cops adjourned the case and now he's saying, "I'm sick of this matter adjournment - all this garbage, I'm not coming." But we sent the subpoena again.
HIS HONOUR: Yes, I saw that.
MR SLAVESKI: Yes so, you know, these people when they come they have to give the evidence. They should not be played with.
HIS HONOUR: Yes. All right. Well - - -
MR SLAVESKI: Thank you, Your Honour. I apologise again to the court.
HIS HONOUR: Yes. Now, we're finished with Mr Tancevski and we've thanked him for his evidence. Mrs Slaveska, are you ready to resume your evidence.
MR SLAVESKI: I think I need a bit of a break, Your Honour.
HIS HONOUR: You need a break?
MR SLAVESKI: Yes, I am just on fire.
HIS HONOUR: You're – all right. Well, it's now - - -
MR SLAVESKI: These people don't play with me. Thirty-five, 40 years being in the recording industry playing with evidence, you corrupted cops. I must walk out from the court from Your Honour.
HIS HONOUR: All right. Well, we might adjourn until tomorrow, Mr Slaveski.
MR SLAVESKI: No, it's all right, Your Honour.
HIS HONOUR: Well, we need to - - -
MR SLAVESKI: Like, I am sick of these people. I've got a quarter of a million dollar recording studio there and these stupid police officers are going to tamper with evidence, making movies out of me. Threats to kill a police officer with a newspaper. You people should be embarrassed of yourselves.
HIS HONOUR: All right. We're going to adjourn until - - -
MR SLAVESKI: I apologise to you only, Your Honour, I do.
HIS HONOUR: - - - tomorrow at 10.30.

Day 12 of the trial: 25 August 2009

On 25 August 2009, there was discussion about how Mr Slaveski would prove his allegation that his businesses lost income as a result of the police defendants’ conduct. Mr Slaveski asked Mrs Slaveska to read a letter from an accountant and after she did so, he sought to tender it. Mr Gipp objected to the tender and the letter was marked for identification. Mr Slaveski then sought to produce to the Court various bank deposit books and other primary books of account, rather than tax returns, profit and loss statements or balance sheets for particular years.

When I sought to explain the normal way in which loss of income was proved and the importance of independent records, such as bank statements, Mr Slaveski became discourteous. This is reflected on pages 1235 to 1237 of the transcript, relevant parts of which are set out below:

MR SLAVESKI: So, what I'd like you to do, Your Honour, is I would like you to physically see these documents please.
HIS HONOUR: Mr Slaveski, I won't do that because the bank statements, as Mr Gipp has said, will provide a running total for all of these amounts so, rather than looking at lots of books, what Mr Gipp has asked for - -
MR SLAVESKI: I'm not interested in what Mr Gipp said.
HIS HONOUR: Well, I'm agreeing with what Mr Gipp has said, that's why I'm explaining - - -
MR SLAVESKI: You do.
HIS HONOUR: - - - it to you. That's right.
MR SLAVESKI: What if I say I don't want your explanation and I don't accept your explanation, Your Honour, with all due respect.
HIS HONOUR: Well, Mr Slaveski, the way these court proceedings work - - -
MR SLAVESKI: Yes.
HIS HONOUR: - - - is that one party makes submissions, the other party makes submissions - - -
MR SLAVESKI: So, you don't acknowledge, Your Honour - - -
HIS HONOUR: Mr Slaveski, do not interrupt me please.
MR SLAVESKI: Of course.
HIS HONOUR: Wait until I finish.
MR SLAVESKI: Of course. See Snezana. What did I say to you today?
HIS HONOUR: The way – please do not interrupt me, Mr Slaveski. The way it works is that one party makes submissions, the other party makes submissions and the judge decides and that's what a judge is for. The judge decides.
MR SLAVESKI: So, you don't accept to see a stamp from the bank?
HIS HONOUR: Mr Slaveski, Mr Gipp has submitted that it would assist all the parties, including me, to have the bank statements.
MR SLAVESKI: All right.
HIS HONOUR: You say you have the bank statements.
MR SLAVESKI: Yes.
HIS HONOUR: Therefore please produce them.
MR SLAVESKI: All right. Then I will certainly produce them, Your Honour. I would like you to just see one deposit of notes. There's $10,000 note here. Can Your Honour see this please?
HIS HONOUR: Mr Slaveski, I can accept that if it's just - - -
MR SLAVESKI: But I would like you to see it. It's different when you see it, Your Honour, please. It's $10,000 cash money.
HIS HONOUR: Mr Slaveski, if that amount will - - -
MR SLAVESKI: Yes.
HIS HONOUR: - - - appear in the bank statement. Now, I have ruled that for this matter to proceed to the next step, you are to produce the bank statements.
MR SLAVESKI: Your Honour, obviously you are not taking this as evidence. Are you going to mark them something or what?
HIS HONOUR: I'm happy to mark these documents as – for identification.
MR SLAVESKI: Of course, identification or corruption?
HIS HONOUR: What do you say, Mr Slaveski?
MR SLAVESKI: That they are corrupted, Your Honour?
HIS HONOUR: Well, Mr Slaveski - - -
MR SLAVESKI: The police is corrupted.
HIS HONOUR: That is not helpful for you to be making statements like that.
MR SLAVESKI: Of course. All right. What's the identification number, Your Honour? Let's proceed, please.
HIS HONOUR: Thank you.

Later on 25 August 2009, there was a discussion about Mr Slaveski’s request that the Chief Commissioner of Police be required to produce all Law Enforcement Assistance Program (‘LEAP’) records relating to the police defendants. The Court was informed that in the case of a member of the public, LEAP records are easily accessible because they involve limited categories, such as when a person is a defendant in criminal proceedings, is suspected of having committed a criminal offence or is a respondent to an intervention order. The Court was also informed that, in the case of police officers, there are thousands of LEAP records because they include routine entries made by them in carrying out their duties. As a result of this information, I ruled that the Chief Commissioner need not include routine entries in the LEAP records that were to be produced in relation to the police defendants.

Mr Slaveski was not happy with my ruling. Mrs Slaveska submitted on his behalf that, as the police defendants had obtained on subpoena all LEAP records relating to Mr Slaveski, he should be given all LEAP records relating to the police defendants. When I refused to alter my ruling, Mr Slaveski became hostile and, while purporting to speak to Mrs Slaveska privately at the Bar table, he made disparaging comments about me, including that my views were ‘criminal’. He also made a veiled threat to end the hearing. This is reflected on pages 1263 to 1265 of the transcript, relevant parts of which are set out below:.

MR SLAVESKI: Excuse me Your Honour, can I have a moment with Snezana?
HIS HONOUR: Of course. Do you want me to adjourn for five minutes?
MR SLAVESKI: No, no, that's OK. That's OK. We'll finalise it today. Today we'll know whether it goes forward, this case, or it doesn't Your Honour.
HIS HONOUR: Sure Mr Slaveski.
MR SLAVESKI: OK, so I'm prepared for that.
HIS HONOUR: Mr Slaveski, I think, you're entitled to have privacy in your discussions with [Mrs Slaveska], you're either making submissions yourself that I hear, or you are discussing the matter with Mrs Slaveska.
MR SLAVESKI: With Slaveska, Snezana Your Honour so - - -
MS SLAVESKA: Your Honour, it's the same thing. As I said before, it's like -
MR SLAVESKI: He's got [a] different view now, I can see. Criminal, his views are criminal.
MS SLAVESKA: Mr Slaveski's concern is that, Your Honour, you've read all this damaging material - - -
HIS HONOUR: Well, Mrs Slaveski, Mrs Slaveska, I beg your pardon, may I correct you on something? I have read nothing. I can tell you now that I have read the … writ, the statement of claim, the subpoenas that I've had to make rulings on, anything that I've had to make a ruling on. I have in front of me Mr Slaveski's LEAP records. I have not read them. I can assure you. … So if Mr Slaveski's concern is that I have read his LEAP records and that my mind has been poisoned against him, the only thing I know about Mr Slaveski's record is what you or he has told me. I can assure you of that. These documents are not evidence until they are placed in evidence, as I explained before.

Later still on 25 August 2009, Mr Slaveski re-agitated the issue of the LEAP records and intimated that he might ask me to disqualify myself and possibly walk out of the hearing the following week. This is reflected on pages 1279 to 1283 of the transcript, relevant parts of which are set out below:

MR SLAVESKI: So I'll put towards the court, Your Honour, that everybody's on notice, we the, and for today, Your Honour, I get, I am not in a position to continue, I don't feel the best. And for the other reason is that I can see I don't blame anybody but the defendants themselves, they're just poisoning everybody, their minds, and it's just not fair. And with all due respect, Your Honour, I do recall what Magistrate Popovich said, "Mr Slaveski, I am not going to read this. I shouldn't have read it", so I'm sorry but - - -
HIS HONOUR: I'm one step behind her, Mr Slaveski, because I have not read the material.
MR SLAVESKI: I don't know whether you do, whether you have or you haven't, I don't know that, Your Honour.
HIS HONOUR: Mr Slaveski, I have told you I have not read the material - - -
MR SLAVESKI: Well, Your Honour –
HIS HONOUR: That means that I have not read the material.
MR SLAVESKI: Yes, so, Your Honour, I would like the LEAP record, as I said to Snezana from that criminal record until their documents are produced in the same format as mine, and, Your Honour, I don't believe that you've been fair because you said to the State, "Give me 100 pages and give me how many pages are on the computer printout?" And Mr Ihle never told you how many pages.
HIS HONOUR: Yes, but he's going to tell me on Monday.
MR SLAVESKI: Of course he will, Your Honour. Christmas is coming as well, Your Honour, of course. But you know, we have to hit the nail on the head, that's why it's a Supreme Court, let's do the job right. So, unfortunately, Your Honour, now, I am putting the court on notice, I want all the way justice or I would like to ask you to disqualify yourself.
HIS HONOUR: You're asking me to disqualify myself?
MR SLAVESKI: No, Your Honour, if there is no justice as of next week, Your Honour. So I would like to put everybody on notice that the police and the State has poisoned your brain, your mind, with all due respect, with the LEAP record and that I carry a gun, that I am a drug dealer, that I am whatever I am to them, but I reverse those words, that they are the ones carrying guns and killing people. I don't do that, Your Honour. I am a businessman, I am a respectable gentleman and as you saw, $1.65 million was deposited into my account and Your Honour didn't take that into consideration, but it's there, it's on the record. So it's better we all possibly start fresh next week, or Your Honour, you know what the laws are more than anybody.
HIS HONOUR: Well Mr Slaveski, I will - - -
MR SLAVESKI: I will get Snezana now.
HIS HONOUR: I will repeat for your benefit - - -
MR SLAVESKI: Yes.
HIS HONOUR: - that I have not read the LEAP records that have been produced about you, that my mind has not been poisoned. What I said before was that that was your concern - - -
MR SLAVESKI: Yes.
HIS HONOUR: - but my position is very different from the Magistrate, because I have not read the LEAP records, and there is no basis for me to disqualify myself based on anything in the LEAP records. The only information I have about your history, as shown in the LEAP records, is what has been said in open court.
MR SLAVESKI: Are you saying, Your Honour, that you didn't read my criminal record? You saw it, but you shouldn't have read it, Your Honour.
HIS HONOUR: No, no. I saw - - -
MR SLAVESKI: But you've seen and the one that I ripped it out and you were holding it.
HIS HONOUR: No, Mr Slaveski - - -
MR SLAVESKI: So you've got a view of me being a criminal, Your Honour.
HIS HONOUR: No, Mr Slaveski, let me just repeat it so that you can understand it. Everything that is filed pursuant to subpoena goes in the court file. As the judge running this case - - -
MR SLAVESKI: Of course.
HIS HONOUR: - my staff and I have the court file. I physically see that there's a subpoena been produced, and attached to it are LEAP records relating to you. I have not read that material.
MR SLAVESKI: Your Honour, when I read that criminal record of mine that they created. I'm not a criminal, they created.
HIS HONOUR: Well, it's a record that's been produced by LEAP as a result of - - -
MR SLAVESKI: By who? By who, Your Honour?
HIS HONOUR: By the State. By the police in response - - -
MR SLAVESKI: By Victoria Police – Police Victoria. Victoria Police, Your Honour, has an ABN number. They are just a security company. That's all they are.
HIS HONOUR: The Victoria Police is a state government agency, Mr Slaveski.
MR SLAVESKI: Well, then it's their problem but I've got my state and my – I've got my God gifted human rights and I've got my rights that overrules your rights, Your Honour, and the State's rights. It overrules the whole laws of the universe which is my human rights.
HIS HONOUR: Mr Slaveski - - -
MR SLAVESKI: And those human rights, Your Honour, if we're going to continue this way, they have been neglected. They have not been upholded by you by accepting those corrupted files by Victoria Police and I allege that are corrupted because they started giving you corrupted documents to you, Your Honour, as well. They've been giving us corrupted documents for the past nine years. That is the reason that we are here today. They either give you the lot or nothing and I'm prepared for that. At least we go that way. Your Honour, he knows what his position is.
HIS HONOUR: Well - - -
MR SLAVESKI: I'll sit down now, please?

Day 13 of the trial: 31 August 2009

The next hearing date after 25 August 2009 was 31 August 2009. At the commencement of the hearing on that day, I made a statement to Mr Slaveski explaining his options were he to decide to walk out of the hearing simply because he was not happy with one of my rulings. I also discussed an inappropriate comment that Mr Slaveski had made to my associate over the telephone on 27 August 2009 to the effect that he knew that I was under pressure from the police and the State because this was a big case. My statement and the discussion are set out at pages 1292 to 1300 of the transcript, and are extracted below:

HIS HONOUR: Following on from last Tuesday, I'm going to make a statement for your benefit. It explains some things which you may or may not be aware of but in case you're not aware of them, it's important for you to listen and - - -
MR SLAVESKI: Thank you, Your Honour.
HIS HONOUR: - - - and Mrs Slaveska if you can listen carefully as well. I'll just go through the statement. If you can defer any questions until after I finish that would be better.
MR SLAVESKI: What's defer, Your Honour?
HIS HONOUR: Wait until I finish.
MR SLAVESKI: Sorry, sir. Sorry, Your Honour.
HIS HONOUR: So, rather than interrupting and asking a question - - -
MR SLAVESKI: Yes.
HIS HONOUR: - - - I will read fairly slowly so that the transcript is accurate and if you have any questions after we finish today, you can always come back and ask any questions after you've had a chance to read the transcript.
MR SLAVESKI: Thank you.
HIS HONOUR: On Tuesday 25 August, Mr Slaveski, you indicated during the discussion in court that you may consider walking out of the hearing if you do not like my decision about production of the 2nd to 20th defendants' full LEAP records. I wish to explain your choices and the consequences of those choices. You have four choices.
Your first choice is to continue conducting your case fully as you have been doing to date. If you do this, you must, like every party in every proceeding, comply with rulings that the judge makes including about subpoenas even though you do not like them. A party who does not like a ruling cannot simply walk out and start again with another judge. You do not have that choice. The normal procedure is that the hearing continues and the judge makes a final decision called the judgment at the end of the case. The normal rule in Australia is that the party that loses is ordered to pay the legal costs of the party that wins. If the defendants lose, it is likely they will be ordered to pay your legal costs. If you lose, it is likely you will be ordered to pay the defendants' legal costs. The party that loses can appeal to the Court of Appeal against the judgment. In such an appeal, a party can complain about the end result and in addition to the end result, they can complain about any ruling made during the trial including any order for payment of costs.
However, a party cannot interrupt a hearing to appeal against rulings made during the trial. The hearing must continue until the judge delivers the judgment. It is only then that the judgment, including any rulings made during the trial that affect the judgment, can be appealed to the Court of Appeal. So, that is your first choice.
Your second choice is to discontinue the proceeding under Rule 25.02 of the Supreme Court Rules. If you wish to do that, you will need either permission from me or the consent of all the defendants. If you seek my permission, that permission may be granted on certain conditions. For example, it is normal to require that the plaintiff pay the defendants' legal costs up to the date the proceeding is discontinued. Rule 63.15 provides for payment of legal costs.
Another condition that the court can impose if you wish to discontinue is that you be prohibited from bringing a new proceeding against the defendants on the claims set out in the further amended statement of claim dated 27 March 2008. This is because normally, once a plaintiff starts a proceeding he or she is expected to finish it so that the defendants do not face repeated proceedings over the same claims.
If you decide to seek to discontinue the proceeding, I will hear from you and from the defendants about what conditions, if any, should be imposed. Even if a condition prohibiting you from bringing a new proceeding is not imposed, the defendants might be able to rely on the six year limitation period as a defence to some of the early incidents in the further amended statement of claim. So, that is your second choice.
Your third choice is to completely abandon all the claims set out in the further amended statement of claim and consent to the proceeding being dismissed. If you inform me that this is what you want to do, I will enter judgment for the defendants dismissing the proceeding and then hear arguments about whether you should be ordered to pay their legal costs to date. If the proceeding is dismissed, you would not be able to bring a new proceeding against the defendants on the claims set out in the further amended statement of claim. This is your third choice.
Your fourth choice is to keep this proceeding alive, but no longer attend the hearing. If you make this choice, then your case will be treated as closed. That would mean that your case would be made up only of the evidence that has so far been given and you would not be able to present new evidence. It would then be up to the defendants to start their case. They might choose to present evidence or, instead, apply for judgment against you on the basis that you have not established a case against them. Either way, the hearing will continue in your absence. I will prepare the judgment after the defendants' evidence and submissions are finished.
You will be able to participate in the hearing at any time you attend court, but any steps that have already been taken in your absence will not be repeated. For example, if one of the defendants gives evidence and you are not present to cross-examine him or her, you would not be able to do so once that defendant leaves the witness box. If you are present in court when it is time to make your submissions, you will be able to do so. If you are absent, I will decide the case without the benefit of your submissions.
If you adopt this fourth choice that I have been discussing, and no longer participate in the hearing, there is an obvious risk for you that the defendants will succeed in obtaining judgment against you on some or all of the claims against them. This risk exists because you, as plaintiff, started the case and you have the onus to prove your claims. If you are not here to deal with the defendants' evidence and submissions, the court may not have the benefit of everything that may be damaging to the defendants' case, or favourable to your case.
If judgment is entered in favour of the defendants, the proceeding will be dismissed and you would not be able to bring any new proceeding against them on the claims set out in the further amended statement of claim. The defendants will no doubt apply for an order that you pay their legal costs of the proceeding. As I have already said, the normal rule is that the party that loses is ordered to pay the legal costs of the party that wins.
I have mentioned a number of times the possibility of an order for payment of legal costs being made against you, Mr Slaveski. I want to explain the consequences if such an order is made against you. The defendants' legal costs are likely to be high. When costs are assessed by the court, the amount will become due and payable by you. If it is not paid, the defendants could take steps to sell your assets to pay the costs, or they could apply to bankrupt you. So, an order for payment of legal costs could have very serious consequences for you and your family. The fact that you are on a disability benefit does not exempt you from an order for payment of legal costs being made against you, or such an order being enforced.
Mr Slaveski, you have said several times that you have been waiting for many years to have this proceeding heard. We have already sat for 12 days. When the time comes for you to make a choice, I would hope that you will adopt the first choice I have mentioned, and fully participate in the proceeding. By doing so you will have a better opportunity to win the case. Of course, I cannot say now who will win. I will make this decision after hearing all the evidence and the submissions. When the time comes for you to decide which choice to adopt, I will give you an adjournment to consider your position carefully, and hopefully get legal advice. You should not make a hurried or hasty decision. That concludes my statement, Mr Slaveski.

MR SLAVESKI: Thank you, Your Honour.
HIS HONOUR: If you have any questions, you can ask them now, or if you wish, you can wait until the transcript is prepared and you'll be able to read very carefully what I said. As I said at the outset, because we finished on a very uncertain basis last Tuesday, where one interpretation of what you said was that if you didn't like what I was going to do with the LEAP records, you were going to walk out, I thought that I would tell you as simply as I can what that would mean and what the choices are.
MR SLAVESKI: I much appreciate it. If I can just bring something to the court's attention, Your Honour?
HIS HONOUR: Is this in relation to what I've just said, Mr Slaveski?
MR SLAVESKI: No, Your Honour, it's what I said last week.
HIS HONOUR: All right, Mr Slaveski. There are a couple of other things that I need to discuss, but you can certainly come back to that.
MR SLAVESKI: Sorry, yes, thank you.
HIS HONOUR: So, if you and Mrs Slaveska don't have any questions now, then I'll move on.
MR SLAVESKI: Not for now, Your Honour, because with all due respect, you're not just the solicitor - - -
HIS HONOUR: I'm not a solicitor.
MR SLAVESKI: - Not a barrister, you are above that, then your meaning are very up to date, so we need to read carefully what the options are.
HIS HONOUR: Of course. Yes, when the transcript is produced, I will actually make sure that if there are any errors, I will correct them, so that the final version of the transcript is accurate, and, as I said, once you consider the issues, I'm not going to put you on the spot. If you need time to consider that and obtain legal advice, for example, then certainly that will be afforded to you.
The next matter I want to raise with the parties is a discussion that Mr Slaveski had with Mr Choo on 27 August. Mr Choo has told me that during a telephone discussion he had with Mr Slaveski last Thursday when Mr Choo telephoned Mr Slaveski to make arrangements for moving everyone's items from Court 8 to Court 9, Mr Slaveski informed Mr Choo that he wanted to raise something else with him. Mr Choo reminded Mr Slaveski of what I had said previously, that he and all the parties in this case should only discuss routine administrative matters with my associates.
Despite this, Mr Slaveski did raise another matter with Mr Choo. He said that he wanted Mr Choo to draw to my attention p.1280 of the transcript to ensure that I understood that last Tuesday he did not actually ask me to disqualify myself. He wanted to make sure that I did not misunderstand what he said on that occasion. I have read that page of the transcript Mr Slaveski and what you said is clearly stated on that page.

MR SLAVESKI: That's correct, Your Honour.
HIS HONOUR: During the discussion, Mr Slaveski also made three other comments to Mr Choo. Firstly he said that he has put the court on notice that he wants all the way justice, not bits and pieces. Secondly he said that he knew that the judge is under pressure from the police and the State because this is a big case. Thirdly, he said that he is grateful for the judge's help, but the judge should help with the big things, like the police defendants' LEAP records and not just the little things.
Mr Slaveski, I can assure you that I am not under pressure from the police, the State or from you. I will deal with this case independently and fairly for all parties and without fear or favour in accordance with my judicial oath.
I would also like to remind you and also the defendants, that these types of statements should not be made to my associates. Only routine administrative things should be raised with my associates after court. If there's anything else to be said, it should be said in open court so that everyone can hear it and it can be recorded in the transcript.

Day 14 of the trial: 1 September 2009

On 1 September 2009, there was extensive discussion about a DVD containing footage from one of the security cameras at the Children’s Court on 13 July 2006, being the date of the ninth incident. The footage showed officer Parker, the eighth defendant in this proceeding, standing in a corridor of the Children’s Court, with Mr Slaveski seated on the other side of the corridor. Mr Slaveski was charged with stalking officer Parker and making a threat to kill him. Before me, Mr Slaveski alleged that the DVD that was played at the hearing of the charges before the Melbourne Magistrates’ Court in 2007 had been tampered with by the police.

When Mr Ihle sought to explain the provenance of the DVD, Mr Slaveski became abusive and stormed out of the Court room, screaming in Macedonian and kicking the Court room wall as he left. I adjourned the hearing briefly. After the adjournment, I admonished Mr Slaveski for his unacceptable behaviour and reminded him of how he should behave. These events are set out on pages 1424 to 1426 and 1428 to 1434 of the transcript, relevant parts of which are set out below:

MR IHLE:I assume that the DVD that's been played contains a portion of court book item 161 - - -
HIS HONOUR: In other words, part of it rather than the full part of it.
MR IHLE:Yes.
HIS HONOUR: The entire - - -
MR IHLE:The part that was relevant to the criminal proceeding.
HIS HONOUR: Mr Slaveski please.
MR IHLE:This is an assumption I'm making Your Honour. I need to make that clear.
HIS HONOUR: So who produced the - - -
MR SLAVESKI: Careful what you're saying, six months imprisonment.

HIS HONOUR: Mr Slaveski, please. Yes.
MR IHLE:Mr Slaveski indicated on 12 August at p.679, Your Honour, that that DVD was provided to him by the informant.
HIS HONOUR: Yes.
MR IHLE:And that was provided as Your Honour is aware after an order by the Magistrate that it be provided.
HIS HONOUR: Yes, yes.
MR IHLE:Over objection.
HIS HONOUR: Yes. The question though, is, why, in response to the subpoena in the Magistrates Court, the entire eight minute footage was not produced and a shorter version was produced? That's Mr Slaveski's question.
MR IHLE:I don't have specific instructions on that, but I can only assume it's for ease [of] reference so that it can be played – the Magistrates Court is not set up as this court is - - -
MR SLAVESKI: Shut up. Tell the truth, you piece of garbage. I walk out. (Indistinct). Six months imprisonment
(Indistinct). I apologise Your Honour.

HIS HONOUR: Mr Slaveski.
MR SLAVESKI: You be careful what you're doing. Six months imprisonment. You corrupted cops, you corrupted State. I'll walk out Your Honour.
HIS HONOUR: Now Mrs Slaveska, this is unacceptable.
M[S] SLAVESK[A]: Your Honour, can I explain about the DVD. I know Mr Slaveski just hit the roof, he's too upset. …
…
HIS HONOUR: So I'm going to adjourn. How long do you think it will take for Mr Slaveski to calm down?
MS SLAVESKA: Your Honour, I'm not a doctor I know, but sometimes it can just escalate more, sometimes it can stop. I really - I can't be sure, you know. Probably ten minutes maybe?
HIS HONOUR: Is that sufficient do you think? Well he's back, perhaps I should ask him.
MS SLAVESKA: If we need more Your Honour - - -
HIS HONOUR: Yes. Now Mr Slaveski, would you like me to adjourn briefly so that you can calm down.
MR SLAVESKI: I just can't - that feedback Your Honour. That's all right, Snezana can continue.
HIS HONOUR: Well I think you should, if you don't mind, sit at the Bar table and if you want me - - -
MR SLAVESKI: Your Honour, six months' imprisonment why?
HIS HONOUR: I understand Mr Slaveski but - - -
MR SLAVESKI: It's not fair Your Honour, I've got kids as well.
HIS HONOUR: All right, well what I think I will do is I will adjourn until half past - - -
MR SLAVESKI: Your Honour, if they want me to go to prison, they should be fair, they should say "Mr Slaveski, we want you to go in prison" but not tampering with evidence.
HIS HONOUR: Well Mr Slaveski - - -
MR SLAVESKI: It's not fair like this.
HIS HONOUR: I have a few things to say to you about your behaviour but I don't want to say it now whilst you're not calm. So I'm going to - - -
MR SLAVESKI: Your Honour, I cannot stand tampering with evidence.
HIS HONOUR: Well Mr Slaveski, I'm going to adjourn until half past 11. At that point, I'm going to discuss with you what is acceptable behaviour and what is not acceptable behaviour in this court.
MR SLAVESKI: Why didn't they discover this at the start?
HIS HONOUR: Well Mr Slaveski, I'm going to adjourn until 11.30.
MR SLAVESKI: OK.
HIS HONOUR: And at that point, I'm going to have a discussion with you about what's acceptable and what's not, and how we will proceed and how this issue is going to be dealt with.
MR SLAVESKI: Your Honour, if he's lying to you like he lied - - -
HIS HONOUR: Mr Slaveski?
MR SLAVESKI: Yes.
HIS HONOUR: I have said I'm going to adjourn until 11.30.
MR SLAVESKI: Yes Your Honour.
(Short adjournment.)

HIS HONOUR: Now, Mr Slaveski.
MR SLAVESKI: Yes, Your Honour.
HIS HONOUR: At the start of the trial, you will remember that I said there's one basic rule for this hearing and that is that everyone in this court has a role to play and the role of everyone has to be respected so, it was a very simple rule. You don't have to like the judge, you don't have to like the barristers for the defendants but you have to understand that they are performing a role within the legal system and that role needs to be respected and there has to be courtesy and respect in this court. Everyone in this court now and future witnesses are entitled to perform their role in a calm, safe and non threatening environment.
There is no room for rude, insulting or threatening behaviour. It's unacceptable and will not be tolerated and I'm saying this in case you do not know but in certain situations and I'm not talking about you at the moment. I'm just letting you know and I think you'll understand this, that if, for example, one of the parties attacks another party – tries to strangle them in court, for example. That's an extreme example. That can constitute a contempt of court.
Now, a contempt of court is a criminal offence. The judge, in that situation, can order the person in that situation, not your situation, but the example that I'm giving you – I'm painting an extreme example so you understand that there are limits. The judge, in that situation, can order that person to be immediately arrested and imprisoned. Now, your behaviour before the adjournment was threatening and was offensive and is unacceptable. I'm not going to do anything about it. I haven't considered whether it constitutes a contempt of court. I haven't asked myself that question because I want to make sure that you understand that you cannot behave that way and you've done it now but if you do it again, there may be consequences for you.
The defendants and their representatives in court may have rights about the behaviour. So, I would like to treat this as a lesson if you like so that you understand that you cannot behave as you wish in the court. And even though you get angry because you don't like what's said or what's happening and I understand that you are on medication but that cannot be an excuse for inappropriate behaviour.
So, you need to take steps to control your anger and to ensure that there is no repetition of what has occurred because this is a civilised community and this is a civilised place where a very important event is taking place. You are here as a plaintiff. You're representing yourself which you're entitled to [do] and you are making serious allegations against the defendants. The defendants are represented in court not because they want to but because you've sued them and they have a right to be here. They have a right to hear your case, they have a right to present their case and I will listen to everyone fairly and make my decision at the end. So, that's all that I wish to say about what has happened. I haven't said much but I want to keep it very simple for you so that you understand but we cannot have a repetition. And that's really the bottom line. Now, we'll talk about the DVD in a moment, where we go from there. Is there anything that you want to say?

MR SLAVESKI: Yes, I do, Your Honour. Now, Your Honour, who do I focus on? Now these 19 police officers – I don't like them. They have taken over my life.
HIS HONOUR: Well, I'll just - - -
MR SLAVESKI: That's number one. Can I just finish, please, Your Honour, please?
HIS HONOUR: Well, I asked you to – whether you had anything to say about what I said.
MR SLAVESKI: Yes. All right. That's fair. But what I would like you, Your Honour, is to take all of your powers and measures and possibly like you said – if somebody lies to you, especially the court officers, you've got the right to revoke the licence. Am I right?
HIS HONOUR: No, that's not right.
MR SLAVESKI: It's not right. What sort of rights do you have if they lie to you?
HIS HONOUR: Well, if a person lies – if an officer of the court lies, that can be the subject of disciplinary proceedings but not by the judge. There's other authorities that deal with that.
MR SLAVESKI: Disciplinary, like the legal commissioner.
HIS HONOUR: Legal Services Commission, that's right.
MR SLAVESKI: We know that. We've done that in the past.
HIS HONOUR: Yes, you mentioned that.
MR SLAVESKI: Now, what does Your Honour do when - - -
HIS HONOUR: Sorry, Mr Slaveski, we'll deal with the specific issue that has arisen. I just really wanted to ask you whether you had anything to say specifically about what I have said about your behaviour.
MR SLAVESKI: Your Honour, I don't like my behaviour and I don't like them when they tell the court the untrue.
HIS HONOUR: All right.
MR SLAVESKI: That has been happening to us for the past nine years and they've created me. They've made me on medication, a nervous wreck. So, I don't blame myself. You should not blame me, Your Honour. You should blame these people. Now, where was the State to say to the magistrate – your magistrate, there's two types here?
HIS HONOUR: Well, we'll get onto that in a second, Mr Slaveski but - - -
MR SLAVESKI: It's not fair, Your Honour.
HIS HONOUR: - - - I'd just like to respond to something you've said. Whatever the circumstances, you – that is you, Mr Slaveski, have to take responsibility for your own actions in this court. If you start kicking the court premises and you start shouting, whatever you were shouting in Macedonian, you are responsible for that.
MR SLAVESKI: Of course.
HIS HONOUR: And you are to take responsibility - - -
MR SLAVESKI: I wanted to get a gun so I can defend myself up against these 20 cops. Nobody gave me that gun, so what do I do? They want to kill my children, Your Honour.
HIS HONOUR: Mr Slaveski, please sit down now. Please sit down. Now, do the defendants have anything to say about what I have said?
MR IHLE:No Your Honour.

Day 15 of the trial: 2 September 2009

On 2 September 2009, Mr Slaveski became upset because I would not accept as an exhibit a professional indemnity insurance policy which I considered to be irrelevant. He was disrespectful and accused me of taking the defendants’ side and of having orchestrated my appointment as the judge to hear his case. This is reflected on pages 1608 to 1610 and 1613 to 1617 of the transcript, relevant parts of which are set out below:

[MS SLAVESKA:] … The next document here is a tax invoice of - sorry, it's a schedule of cover from OAMPS Insurance. The purpose of this document Your Honour is like when Mr Slaveski was doing finance, he had to have a professional indemnity insurance - - -
…
MR SLAVESKI: It is Your Honour, it's a $5000 policy so please I would like that to tender it please?
HIS HONOUR: Well I don't see - is there any dispute that Mr Slaveski had a professional indemnity policy running the business and - so that's accepted Mr Slaveski?
[MR SLAVESKI:] Well Your Honour, I've made the exhibits so they can take it.
[HIS HONOUR:] Well I'm not going to have my chambers full of documents that are not going to help me run the case. That's an expense of the business, it will show up in the profit and loss statement.
MR SLAVESKI: (Indistinct) indemnity insurance for the finance. I know where this case is going, it's a corrupted case - - -
HIS HONOUR: Mr Slaveski, this is not a corrupted case. The fact that you are a self represented individual does not mean that you don't have the same obligations as any other person to prove your case. I can only deal with documents and evidence that's relevant to the case. I can accept that as an exhibit and I can put it on the floor in the chambers, but when I write my judgment, the fact that you have paid $5000 for professional indemnity insurance is not going to be relevant to my judgment.
MR SLAVESKI: Your Honour, why would I pay $5000, with all due respect, if I did one or two loans, you know.
HIS HONOUR: But no one is disputing how many loans you've made Mr Slaveski.
MR SLAVESKI: Well who knows how many loans I've done?
HIS HONOUR: But it doesn't - - -
MR SLAVESKI: Or it doesn't matter?
HIS HONOUR: No it doesn't matter from the point of view that what is relevant is that you were conducting a business or several businesses - - -
MR SLAVESKI: But Your Honour, in 2004 I was locked up. Have you ever been locked up in jail.
HIS HONOUR: No I haven't.
MR SLAVESKI: Well then if people don't believe me that I was locked up and I was with prisoners, with murderers, I hope they get locked up so they will know, they can think of me how I was thinking.
HIS HONOUR: Mr Slaveski - - -
MR SLAVESKI: I was in cells with murderers. It's not a pleasant thing Your Honour.
…
HIS HONOUR: All right. Well, that's what I'm focusing on at the moment. To produce to the court bits and pieces of an expense about this and a payment about that and a payment into the bank account about that means that these pieces of separate information, unless they're all complete and put together, then I cannot be sure what the income and the expenses were for any particular year. And I can't be sure that if one takes all of that information and puts it together that one comes up with a reliable profit.
MR SLAVESKI: So, Your Honour is only going to, yes. Your Honour is only going to go according to the tax return up to 2004 and that's it. Is that what you're saying, Your Honour?
HIS HONOUR: Well, no. For the period that there is a tax return - - -
MR SLAVESKI: Yes.
HIS HONOUR: - - - then I – if you tender that because at the moment, I think it's still marked for identification - - -
MR SLAVESKI: Yes.
HIS HONOUR: - - - then, subject to any issues that the defendants take about that tax return, then I'll certainly accept that as being an accurate statement of the profit of the business. So, after that is the big question. As I understand it, what you've got is a lot of raw materials. A lot of individual documents - some about payments, some about expenses. The question is what is done with that. It's not appropriate - - -
MR SLAVESKI: What would you do if you get followed with guns?
HIS HONOUR: Mr Slaveski - - -
MR SLAVESKI: This is where the $69,000 question is and I was followed at every second day, Your Honour.
HIS HONOUR: The question is you've brought this case making these allegations. You rely on your business going downhill and eventually closing because of what the police said.
MR SLAVESKI: Yes, not said.
HIS HONOUR: Sorry, did.
MR SLAVESKI: Did.
HIS HONOUR: I beg your pardon. Yes, that's my error.
MR SLAVESKI: Yes.
HIS HONOUR: Now, as plaintiff, you need to demonstrate to the court the before and after situation.
MR SLAVESKI: All right. But, Your Honour, how can I demonstrate when it's an ongoing battle? It's an – in 98. In – that's when they got my licence, that Leigh Cole. I want him on the stand. I'll ask him about that.
HIS HONOUR: Mr Slaveski, I know that. I know that this situation - --
MR SLAVESKI: In 2000.
HIS HONOUR: Well, let me - - -
MR SLAVESKI: In 2001.
HIS HONOUR: Let me finish, please.
MR SLAVESKI: In 2003.
HIS HONOUR: Let me finish, please.
MR SLAVESKI: Yes.
HIS HONOUR: We can go round and round in circles and then create new circles and go around them but we come back to this question. You're the plaintiff. You have the onus to prove your case. At the moment, we're dealing with how you prove the financial performance of these businesses after these incidents. You have that obligation. I don't have the obligation. I have the obligation to make a decision based on the information that's provided to me.
MR SLAVESKI: You see what I said to you, Snezana?
HIS HONOUR: And what I'm saying to you is that you cannot simply produce to the court all these individual items of expenditure and income and say to the judge, "You work it out."
MR SLAVESKI: I never said that, Your Honour, but is it fair for the court and to say, "Mr Slaveski, you know what? There are 20 officers that you're suing." It's visible on the video footage that they did hassle us. They arrested me with no reason. I was not charged. I was bashed up in front of the wife and the children. Damages to the shop – to one shop, to the other shop, to the customers and they had a plan – close one shop, close two shops, close three shops. Now, what do we do to Iraq? We going to bombard Iraq - - -
HIS HONOUR: Mr Slaveski - - -
MR SLAVESKI: - - - and we're going to put big McDonalds.
HIS HONOUR: Mr Slaveski - - -
MR SLAVESKI: We're going to starve them so, that's what Victoria Police did to me.
HIS HONOUR: Mr Slaveski, please - - -
MR SLAVESKI: Yes, that's what they did to me, Your Honour.
HIS HONOUR: As I said, we can go around in lots of circles but we have to come back.
MR SLAVESKI: Which is the come back, Your Honour?
HIS HONOUR: What evidence are you going to produce to the court - - -
MR SLAVESKI: You know what I will produce, Your Honour? I will tell you now what I will produce you and I would like Your Honour or the defendants to take into consideration. For example, Veta Zazuska 30th of the 9th 2005. I did the contract in Epping Police Station.
HIS HONOUR: Yes and that's in evidence, Mr Slaveski.
MR SLAVESKI: That's in evidence. Now, it says there $125 a week.
HIS HONOUR: Yes.
MR SLAVESKI: Due to the police negligence, they interfered in my business. This isn't the cash flow. It is but, Your Honour is not accepting it. You took their side. That's fine.
HIS HONOUR: I'm not taking anyone's side, Mr Slaveski.
MR SLAVESKI: Well, that's your choice. I know where this case is going, Your Honour.
HIS HONOUR: Mr Slaveski, the way - - -
MR SLAVESKI: You've spoken to Master Kings already about it but that's all right. We will get - - -
HIS HONOUR: Sorry, what do you mean, Mr Slaveski.
MR SLAVESKI: Well, you've spoken to Master Kings to appoint you to this case. Am I right?
HIS HONOUR: Of course not.
MR SLAVESKI: You haven't?
HIS HONOUR: No.
MR SLAVESKI: All right then.
HIS HONOUR: I didn't choose this case, Mr Slaveski.
MR SLAVESKI: It was given to you.
HIS HONOUR: Of course, it was given to me.
MR SLAVESKI: By Master Kings.
HIS HONOUR: Of course. She is the listing - - -
MR SLAVESKI: You see.
HIS HONOUR: - - - associate justice.
MR SLAVESKI: And I don't like that woman. You know that, don't you?
HIS HONOUR: Mr Slaveski, your views about Associate Justice Kings you can keep to yourself.
MR SLAVESKI: But you know that though, don't you, Your Honour?
HIS HONOUR: Mr Slaveski - - -
MR SLAVESKI: Now, what I would like out of this, Your Honour, $19,000 Victoria Police to pay me for this car.
HIS HONOUR: Mr Slaveski.
MR SLAVESKI: Is Your Honour going to consider this or not?
HIS HONOUR: That is evidence which I will consider.

Day 16 of the trial: 7 September 2009

On 7 September 2009, Mr Gipp began his cross-examination of Mrs Slaveska. Before the cross-examination started, I explained Mr Gipp’s rights in cross-examining Mrs Slaveska, Mr Slaveski’s right to object and Mrs Slaveska’s obligations as a witness. My comments are set out on pages 1698 to 1705 of the transcript, relevant parts of which are set out below:

HIS HONOUR: Thank you. So as I mentioned, what I will do very briefly is outline the rights of the defendants’ barristers Mr Gipp and Mr Ihle to ask questions in cross-examination, the right of Mr Slaveski to object, and the obligation of Mrs Slaveska as a witness to answer questions, and what I will say will apply to all witnesses for both sides when they are cross-examined. Mr Gipp will cross-examine first and Mr Ihle may or may not cross-examine, depending on how he assesses the situation.
Now, unlike examination in chief, which is what has been completed with you, Mrs Slaveska, in cross-examination the counsel cross-examining can ask leading questions, and you remember that leading questions are questions that suggest the answer? For example, in examination in chief, you can ask the question, "What was the weather like?" but in cross-examination, you can actually suggest the answer. You can say, "It was a dark and wet night, wasn't it?" That's the difference. So in cross-examination, leading questions which suggest the answer can be asked. But in examination in chief, as I sometimes said to Mr Slaveski, "You can't ask that question, you have to ask the question more generally".
The cross-examiner can also ask the same question in different ways to try and get a different answer. Again, there's a difference in examination in chief. When it's your own witness and they give the answer, you're basically stuck with it, you can't try and get the witness to change the answer, with some limits. But there is no such limitation in cross-examination. That doesn't mean that the cross-examiner can ask the same question 20 times, there's a limit, but there's more opportunity to ask the same question in different ways.

MR SLAVESKI: Your Honour, we've been locked up for three years in that house. And for three long years we've been locked up.
HIS HONOUR: I know Mr Slaveski, but that's what - what I'm doing at the moment and what I've done is I've just raised these issues, I've put them on the table so that everyone can go away and think about how I can go on with this case in order to give you a fair hearing, but also ensure that the administration of justice functions as it should in the interests of all the parties. So as - I stress again, I haven't decided anything, I'm just saying we've reached the stage where we need to work out a way that we can go forward and I can be satisfied that people in this court room are not in any danger of being harmed. And that includes you Mr Slaveski.
MR SLAVESKI: I wouldn't hurt anybody Your Honour.
HIS HONOUR: I fully accept - - -
MR SLAVESKI: I mean I'm looking at my son, you know, they would never do that.
HIS HONOUR: Mr Slaveski, I perfectly accept that when you're on medication and when you are in - - -
MR SLAVESKI: But I don't like it.
HIS HONOUR: - - - in control, that you would not hurt anyone, I accept that without any hesitation but what I cannot predict is whether, if something provokes you, if something is said that you don't like, I - -
MR SLAVESKI: I don't like - I like the truth Your Honour.
HIS HONOUR: Well I - I don't know what is going to set you off. What is going to cause you to lose control and at that point I don't know what you might do. That's what I - - -
MR SLAVESKI: So that's why my wife Your Honour took the medication off me. So she's keeping it.
HIS HONOUR: Now if this was the first time Mr Slaveski, I would say well let's - you know, I'd accept your apology and we move on but it's happened a number of times and I just cannot predict when it will happen again. So just to draw this discussion to a close, I would like to encourage you - - -
MR SLAVESKI: If Snezana can write this.
HIS HONOUR: Yes. It would help me, and I think it would help the parties, if you are represented by someone capable, that understands your illness and can make sensible suggestions to the court of what steps the court can take, so that the case can continue. I would like to continue this case Mr Slaveski. I am interested in the story that you present. I want to get to the bottom of it.
MR SLAVESKI: Your Honour, you are - - -
HIS HONOUR: But I can only - - -
MR SLAVESKI: - - - you are wrong Your Honour, this is not a story, this is a real life.
HIS HONOUR: No sorry Mr Slaveski, I'm just using - I'm just using story - - -
MR SLAVESKI: It's ten years of torture of the same policemen.
HIS HONOUR: Sorry Mr Slaveski, I used the word story in plain language.
MR SLAVESKI: Yes.
HIS HONOUR: I want to hear your - your complaints, your grievances, your claims, that's what I meant.
MR SLAVESKI: Yes Your Honour. Although I'm - I'm like this, but I know - I'm not stupid.
HIS HONOUR: No, no, Mr Slaveski, I never said that you are stupid. You - -
MR SLAVESKI: I've been running all these businesses for many years at once.
HIS HONOUR: Mr Slaveski, it never crossed my mind that you are stupid.
MR SLAVESKI: But I like the truth.
HIS HONOUR: Yes.
MR SLAVESKI: Everybody should tell the court, and that's the reason Your Honour.
HIS HONOUR: All right, well - - -
MR SLAVESKI: I went the next day to the Magistrates' Court to tell His Honour Magistrate - what was his name? The Children's Court - Powers, Magistrate Powers to tell him the truth. Although I was threatened with a gun that same day - with a pointing of a gun from Mr Parker, but I still Your Honour went to tell the truth. My - my life has been in jeopardy because I'm here to tell you what has happened. But I'm here before you. I'm not perfect, but the medication that I'm in Your Honour, it's not easy.
HIS HONOUR: Well I think the solution might be Mr Slaveski that I really need to - this is what I've suggested, that I really need to perhaps understand more about your illness from your treating psychiatrist and maybe - - -
MR SLAVESKI: I'll get it actually.
HIS HONOUR: - - - the psychiatrist can attend court and maybe make suggestions as to the best way that you can fully participate in the proceeding without reaching those trigger points that cause you to lose control. That's really what I'm interested in, to find a way that you can prevent losing control.
MR SLAVESKI: Yes Your Honour.
HIS HONOUR: Because when you lose control, I believe, and I'm not a doctor, but I believe from what I've observed that you say things that you regret, maybe say things that you don't even remember that you've said them, and you do things that you also regret.
MR SLAVESKI: Yes Your Honour.
HIS HONOUR: But do you understand my position?
MR SLAVESKI: Yes Your Honour.
HIS HONOUR: If you lose control and you harm someone, I can't reverse that. I can't change that and I cannot be placed in a situation where - when the court is on notice that it - there is a possibility of violent behaviour in this court, that I just ignore it. I cannot ignore it and that's really what this discussion is all about. I cannot ignore what has happened and I want to understand what has happened and I want to find a way that gives an assurance to the court and the other parties that we can continue without any danger to anyone in this court.
Now, I'd encourage you to have a look at the transcript of what I've just said, because I know I've said a lot and it's [a lot] - to take in. I do appreciate Mr Slaveski that at the moment you're very upset and you're agitated, but when you have a chance to go home with Ms Slaveska, have a look at what I've said and the main message, after summarising all that I've said, is that I'm not shutting you out of court, I'm not staying the case - - -

MR SLAVESKI: Please don't Your Honour.
HIS HONOUR: I'm not - - -
MR SLAVESKI: In front of God - - -
HIS HONOUR: No, no, I'm not trying to punish you - - -
MR SLAVESKI: Please, please don't punish us, we're a nice family.
HIS HONOUR: No, I'm not trying - this is not about punishing Mr Slaveski. This is about this court administering justice in accordance with the normal rules that apply. The normal rules haven't been successful at the moment and I want to see what additional steps we can take, maybe with the assistance of evidence from your psychiatrist, about how we can go forward.
That's what it's about, that's why I've made these comments. I'm not expecting any submissions now. I hope that you can get legal assistance. Do whatever you can Mrs Slaveska. There may be, for all I know a mental health legal service, I don't know. But that may be the sort of area - sometimes those organisations take on test cases.
It would be a very serious thing for this court to stay Mr Slaveski's claim without hearing the merits. It would be a very serious thing and wouldn't be taken lightly by the court. If I can get assistance from a lawyer who can assist me with the principles that apply et cetera, because I want to hear not just what the defendants have to say about it, I want to hear what a lawyer from your side has to say about it.
It may be because of what I've raised - and perhaps photocopy the transcript of what I've just said, take it to the Public Advocate, [the] Humans Rights Commission, say this is what this judge has said, there's a risk here that my husband's case maybe not proceeded with, we need help. The judge needs help, the judge wants help, the judge invites assistance so that I can hear your point of view and how I can best look after the interests of someone with an illness in Mr Slaveski's situation as best as possible, in fairness to him as well as the defendants. That's what I would like to have, to have assistance. I'm sorry to have spoken for such a long time.

MS SLAVESKA: That's all right.
HIS HONOUR: I know that you didn't expect to hear what I've said. I didn't give anybody notice. But, it's there now on the record. I'm proposing now to adjourn until next Tuesday. But, if you want to say anything or the defendants want to say anything now, then I'm happy to hear from you. If it's too much Mrs Slaveska, I'll just adjourn, it might be better. Do the defendants have anything to say?
MR IHLE:No, Your Honour.
HIS HONOUR: Mrs Slaveska, would you like me to adjourn or - - -
MS SLAVESKA: Your Honour, I just want to say something.
HIS HONOUR: Take a few moments Ms Slaveska, sit down - - -
MS SLAVESKA: It's all right, I'll speak Your Honour.
HIS HONOUR: - - - get your composure.
MS SLAVESKA: Your Honour, I don't like what's happening and I don't want my husband being like this. But, I feel so - I blame Victoria Police chiefs, I blame the State, Your Honour, the Premier or whoever is responsible in this State. They should acknowledge what their police officers are doing.
If they would have stopped them Your Honour ten years ago, when we complained, nothing would have happened like this Your Honour. We've received threats, all they say is you are paranoid, you [are] thinking this, you are thinking that. Why would we Your Honour, have spent so much money on lawyers? Why would we come to the Supreme Court of Victoria to the highest - almost the highest court and complain and raise this - this lies what they call - that it's not true Your Honour.
If it's not true Your Honour, I will not go in the witness stand and lie to you personally or any other judge Your Honour. It's the truth what I'm saying Your Honour. But, because they've got the power, the badge, the money and they think they can swipe everybody and call them fucking wogs. It's not fair Your Honour, we came to this country to live equally, but Your Honour, I will … put everybody on the record. Even if I die I will sue this State of Victoria and Victoria Police and my children and I will definitely leave this state and possibly the country. I cannot live like this Your Honour. I cannot live like this.

HIS HONOUR: All right.
MS SLAVESKA: That's all I can say Your Honour and we'll try to get legal assistance. I will personally promise you that I will try to do that, speak to his doctors and to whoever they recommend and we'll come back on Tuesday, we'll let you know Your Honour. All I can say is just try to understand our position - - -
HIS HONOUR: I'm trying Ms Slaveska.
MS SLAVESKA: That's all I can say Your Honour.
HIS HONOUR: Let me just add these comments. Before this court everyone is equal. That's the principle that this court operates under. So far as I'm concerned I don't care if there are 50 QC's representing the State or the police. What I care about is what witnesses say in the witness box on oath and what the evidence is.
Mr Slaveski, in the past has said that perhaps I feel under pressure because it's the State and I've said to him a number of times, I feel no pressure whatsoever that it's the State, it's the police. It doesn't matter to this court who the parties are.
The fact that Mr Slaveski is representing himself also doesn't matter. It means that my job is harder because I have to try and help. You will get fairness in this court to the best of my ability.

MS SLAVESKA: Yeah, I thank Your Honour.
HIS HONOUR: But, the problem I have is that in order for this case to proceed it has to follow a certain pattern and it has to follow certain rules. I've explained those rules along the way. Now, when Mr Slaveski's behaving himself he understands them and things run smoothly. But when he loses control he prevents me from doing my job and that's the problem I've got. This is - - -
MS SLAVESKA: I understand that Your Honour and I didn't mean that you - I didn't mean anything for Your Honour. What I meant is for the chiefs of Victoria Police and the State, that's what I meant. They think they can do anything because they've got the badge, that's what I meant. Not for you Your Honour.
HIS HONOUR: No, Mrs - again let me say this. I don't know what the police do outside this court - - -
MS SLAVESKA: Well I know Your Honour, some of them.
HIS HONOUR: That's fine, you do. They have certain authority and they can take certain action. In this court, and in that witness box, any police officer who's giving evidence has no greater right to be believed by me than Mr Slaveski or you or any other witness. They are just a witness in the witness box giving evidence and I will decide this case based on the evidence. That is a given. That is – you can take that as a guarantee.
MRS SLAVESKA: Thank you Your Honour.
HIS HONOUR: The problem is not about the process and that something will go wrong in this court. I make rulings, I apply the law as best I can, Mr Slaveski doesn't agree with many of my rulings, that's his right but he's got to respect them. Where I make a ruling and he doesn't respect that and argues with me, that's when the system can't work.
MRS SLAVESKA: I know Your Honour, it's no good.
HIS HONOUR: And that's the problem.
MRS SLAVESKA: I agree with you.
HIS HONOUR: That's the only problem I have. The rest of it, you shouldn't be concerned about. Now I should say also in fairness to the defendants, in my opinion and again Mr Slaveski will probably disagree with this, they have - that the barristers and the solicitors in this case have acted properly. They have not taken objections when they could have, they have tolerated, as I have, Mr Slaveski's interruptions and they've - Mr Gipp has patiently sat down each time Mr Slaveski has objected. He has not raised his voice, he has not been abusive in response. So you need to understand that they are doing a job. They're not the police officers who you say committed all these acts - - -
MRS SLAVESKA: I know Your Honour, they are paid to protect them, I know that, yes.
HIS HONOUR: They are paid to do their job and they are subject to ethical obligations to this court and they know what those ethical obligations are, and I do. And I can tell you that to date there has been not even a hint of departure from proper ethical behaviour by the legal representatives for the police and the State.
This is a comment about the legal representatives. I make no comment about their clients because I haven't seen them. To me they're … parties and witnesses that will give evidence. So that is the situation as we have arrived at. Now the best thing that can happen is that you do your best to get proper legal representation and tell people that it's a very important precedent where this judge requires assistance from properly briefed legal representatives to help the judge decide what the best way forward is, in fairness to all the parties and in the proper administration of the justice system in this state. That's what I'd like.

MRS SLAVESKA: OK, Your Honour.
HIS HONOUR: All right, we now go - and Mrs Slaveska, unless you have anything further to say, and I'm not encouraging you to - - -
MR SLAVESKI: Sorry Your Honour.
HIS HONOUR: - - - I'm going to adjourn until next Tuesday at 10.30.
MR SLAVESKI: Yes, can I just tell something to my wife Your Honour?
HIS HONOUR: Of course, thank you.
MR SLAVESKI: Is today Tuesday or Wednesday Your Honour?
HIS HONOUR: Today is Tuesday Mr Slaveski. It gives you a week.
MRS SLAVESKA: Your Honour, Mr Slaveski just advised me to let you know that we will call his doctor but I already said that that we will call her. I will personally do that.
HIS HONOUR: Yes, all right.
MRS SLAVESKA: And I will get all the advice that I can, legal and medical and whatever other agencies are available there. I will try to do that, I promise you that Your Honour.
HIS HONOUR: And I wish you luck Mrs Slaveska and - - -
MRS SLAVESKA: Yes, thank you.
HIS HONOUR: - - - I do say again Mr Slaveski, nothing I've said is to be treated as - in any way, blaming you for your conduct. I understand you are ill, I'm just trying to find a way that this court can accommodate - can work with your illness to try and hear your case. That's what I'm trying to do.
MR SLAVESKI: Thank you Your Honour. Thank you for understanding, Your Honour, thank you.
HIS HONOUR: All right, we'll adjourn until 10.30 on Tuesday 22 September.

Hearing on 22 September 2009

On 17 September 2009, on my instructions, my associate sent an email to the parties attaching copies of Order 15 of the Supreme Court (General Civil Procedure) Rules 2005 (Vic) (‘Rules’) and the decisions in Mariotti v Wanneroo North Pty Ltd,[6] Clarey v Permanent Trustee Co Ltd[7] and Skrijel v Mengler.[8] The email invited the parties to make submissions on the above material at the hearing on 22 September 2009.
[6][2008] WASCA 243 (‘Mariotti’).
[7][2005] VSCA 128 (‘Clarey’).
[8][2003] VSC 128 (‘Skrijel’).

When the hearing resumed on 22 September 2009, Mr Wilson SC and Mr Scotter appeared, with leave, as friends of the Court. They were instructed by Public Interest Law Clearing House (‘PILCH’). Mr Alstergren, Ms Golding, Mr Warren and Mr Gottschall also appeared, with leave, as friends of the Court. They did so in accordance with the Victorian Bar Duty Barristers Scheme.

I informed the parties and the friends of the Court that, having reflected on recent events, it seemed to me that two possible interrelated issues had arisen, namely whether the proceeding should be stayed either permanently or temporarily and whether Order 15 of the Rules applied. I said that Order 15 provides that a litigation guardian must be appointed if, after a proceeding is commenced, one of the parties becomes incapable by reason of mental infirmity of managing his or her affairs in relation to the proceeding. I added that the issue of incapacity can be raised by the judge hearing the proceeding on his or her own motion and that this was what I was doing.

Mr Wilson then made the following submissions:

(a)that the Court requires expert psychiatric evidence about Mr Slaveski’s mental health so that it can properly consider whether it is necessary for a litigation guardian to be appointed pursuant to Order 15 of the Rules;
(b)that some of Mr Slaveski’s conduct to date may amount to contempt of court;
(c)that the Court should consider making a self-executing order, whereby the proceeding will be stayed automatically at a future date unless certain steps are performed by Mr Slaveski by that date; and
(d)that there was insufficient evidence for a declaration to be made under s 21 of the Supreme Court Act 1986 (Vic) that Mr Slaveski is a vexatious litigant.

I will discuss Mr Wilson’s first and third submissions separately below.

In relation to Mr Wilson’s second submission, I said that I had already raised this issue with Mr Slaveski and that I had told him that I did not propose to consider formally whether his past conduct constituted a contempt of court. In the light of this statement, Mr Wilson did not develop this submission further. Mr Gipp and Mr Ihle did not make any submissions on this issue or in relation to s 21 of the Supreme Court Act. It is therefore not necessary for me to say anything about the applicability of s 21.

Mr Alstergren adopted Mr Wilson’s submissions. He added that the Charter of Human Rights and Responsibilities Act 2006 (Vic) might apply if it transpires that Mr Slaveski is unable to have a fair trial. Mr Alstergren said that he was not in a position to make any substantive submissions on the Charter and indicated that, in any event, it may be premature to raise the Charter at this stage. I said that I would be happy to receive further submissions on the applicability of the Charter.

Stay or dismissal of a proceeding without an adjudication on the merits

As I have already mentioned, Mr Wilson submitted that the Court should consider making a self-executing order to stay the proceeding unless certain steps are performed by Mr Slaveski by a specified date and time. Those steps were that Mr Slaveski obtain evidence from a psychiatrist and that he make arrangements for the appointment of a litigation guardian.

I informed the parties that, as I had previously raised the issue of a stay or dismissal of the proceeding without an adjudication on the merits, I had reviewed the case law and had prepared a draft summary of the applicable legal principles. I read out my draft summary to assist the parties in formulating their submissions on those principles. My draft summary is set out at [68] to [72] below.

The Court has inherent jurisdiction to dismiss or stay a proceeding without an adjudication on the merits in a variety of circumstances, including the following:

(a) where the proceeding is an abuse of process;[9]
(b)where the plaintiff repeatedly and deliberately fails to comply with Court orders without an acceptable explanation;[10]
(c)where the plaintiff’s conduct is such as to prevent the Court from effectively exercising the jurisdiction which it has to dispose of the proceeding or would thwart the Court’s processes;[11]
(d)where this is necessary to maintain the authority of the Court and the integrity of its processes;[12]
(e)where a fair trial is not possible;[13] and
(f)where the plaintiff has dishonestly misled the Court.[14]

[9]Williams v Spautz (1992) 174 CLR 509, 518 (‘Williams’); Batistatos v Roads and Traffic Authority of New South Wales (2006) 226 CLR 256 (‘Batistatos’); Mariotti [2008] WASCA 243, [57]-[58].

[10]Mariotti [2008] WASCA 243, [53]-[56].

[11]Williams (1992) 74 CLR 509, 518 fn 22; Connelly v Director of Public Prosecutions [1964] AC 1254, 1301; Mariotti [2008] WASCA 243, [57].

[12]CSR Ltd v Cigna Insurance Australia Ltd (1997) 189 CLR 345, 391, Mariotti [2008] WASCA 243, [56], [59]. As stated by Steytler P (with whom Buss JA and Beech AJA agreed) in Mariotti, ‘Those who wish to make use of the processes of the court are required to respect them’ (at [71]).

[13]Batistatos (2006) 226 CLR 256.

[14]Mariotti [2008] WASCA 243, [54], [61], [62], [71].

The above categories are not exhaustive. The Court has broad inherent jurisdiction to be exercised as and when the administration of justice demands.[15] In my opinion, the Court’s inherent jurisdiction could, in appropriate circumstances, be exercised:

(a)where the plaintiff’s conduct is such that the Court is unable to guarantee the safety of the other parties, witnesses, court staff and other persons in court, including the plaintiff; and
(b)where the plaintiff, through mental illness, does not have the capacity to conduct the case personally or to give meaningful instructions to a legal representative, and acceptable alternative arrangements – such as the appointment of a litigation guardian – are not available.[16]

[15]Jago v District Court of New South Wales (1989) 168 CLR 23, 74; Walton v Gardiner (1993) 177 CLR 378, 394; Mariotti [2008] WASCA 243, [59].

[16]Murphy v Doman (2003) 58 NSWLR 51, 61 [52] (‘Murphy’).

The expression ‘abuse of process’ includes situations where the Court’s procedures are invoked for an illegitimate purpose and situations where the use of the Court’s procedures is unjustifiably oppressive to one of the parties or would bring the administration of justice into disrepute.[17] However, in this context, the expression is not confined to these situations. It extends to proceedings that are seriously and unfairly burdensome, prejudicial or damaging or productive of serious and unjustified trouble and harassment’.[18] It also extends to proceedings that are frivolous, vexatious or oppressive.[19]
[17]Rogers v The Queen (1994) 181 CLR 251, 286; Batistatos (2006) 226 CLR 256, 267 [15]; Mariotti [2008] WASCA 243, [60].
[18]Batistatos (2006) 226 CLR 256, 266-7 [14]; Mariotti [2008] WASCA 243, [60].
[19]Batistatos (2006) 226 CLR 256, 266-7 [14]; Mariotti [2008] WASCA 243, [60].

In deciding whether the administration of justice demands that a proceeding be dismissed or permanently stayed, the Court must have regard to all of the circumstances of the case. These circumstances include the impact that a continuation of the proceeding would have on the defendant (such as delay, additional cost and stress) and other litigants waiting patiently for their cases to be heard.[20]
[20]Aon Risk Services Australia Ltd v Australian National University [2009] HCA 27.

Understandably, courts are reluctant to dismiss or permanently stay a proceeding without an adjudication on the merits as this runs counter to the underlying objective of the Court, namely to determine the parties’ rights and obligations after fully hearing their cases. Ordinarily, such a step would be taken as a last resort, where a less drastic alternative is not available.[21] The purpose is not to punish the plaintiff but to safeguard the administration of justice.[22]
[21]Mariotti [2008] WASCA 243, [55], [62], [64].
[22]Mariotti [2008] WASCA 243, [65], [71].

Mr Gipp and Mr Ihle informed me that, at this stage, the defendants did not propose to apply for a stay or dismissal of the proceeding. Accordingly, neither they nor any other party made any submissions on my draft summary of the applicable principles. I indicated to the parties that I regarded a stay or dismissal of the proceeding without an adjudication on the merits as a measure of last resort and that alternative measures, such as the appointment of a litigation guardian, ought to be investigated before such an order was considered.

As the parties were willing to explore the appropriateness of a litigation guardian being appointed and the defendants did not support Mr Wilson’s submission regarding a self-executing order, I declined to make such an order or any other order staying or dismissing the proceeding. However, I informed the parties that the question of a stay or dismissal could be revisited if this course becomes warranted by the circumstances.

Appointment of litigation guardian

There was detailed discussion of Order 15 of the Rules, which, as I have said already, empowers the Court to appoint a litigation guardian for a person who is incapable by reason of mental infirmity of managing his or her affairs in relation to the relevant proceeding. This discussion encompassed the principles that apply to the appointment of a litigation guardian.

Tentative concerns about Mr Slaveski’s capacity to manage this proceeding

As a matter of natural justice, I informed Mr Slaveski of some tentative concerns that I have about his capacity to manage his affairs in relation to this proceeding.[23] The concerns I raised, as recorded in the transcript, are as follows:
[23]See Bahonko v Moorfields Community [2008] VSCA 6, [27].
The cases in this area suggest that where a judge has concerns about the capacity of a party, then as a matter of natural justice the judge must alert the party of those concerns, tentative and uninformed though they may be, so that the party has an opportunity to consider those matters and make submissions to the judge before the judge acts on any concerns that he or she may have.
It's for that purpose that I now set out some of the tentative concerns that I have formed about Mr Slaveski's capacity to manage this proceeding. I repeat that I'm making these observations as a matter of fairness and natural justice to Mr Slaveski.
I stress that they are tentative because I've not made any final decision about any issue that's before the court today. My tentative concerns are based on the following pages of the transcript, 25-27, 30-31, 586-587, 589-597, 1235-1237, 1263-1265, 1279-1283, 1292-1300, 1424-1426, 1428-1434, 1608-1610, 1613-1617, 1698-1705, 1766-1768, 1786-1789, 1850-1851, 1868-1869, 1872, 1881-1886, 1980-1990, 2003, 2476-2483, 2554-1561 and 2562-2582.
These are my tentative concerns Mr Slaveski, and I'm addressing them to you. But you needn't stand up, you can sit down thank you.
MR SLAVESKI: Your Honour said tentative, what does tentative mean?
HIS HONOUR: It's preliminary, temporary, they're not final.
MR SLAVESKI: Sorry.
HIS HONOUR: Yes. My first tentative concern Mr Slaveski is that you appear incapable of understanding your responsibility to behave in a non threatening and non abusive manner towards the defendants’ barristers.
My second tentative concern is that you appear not to understand or not take seriously the warnings I have given you about your threatening and abusive behaviour.
Third, you appear incapable of understanding that you must obey my directions and rulings and not argue with me or insult me.
Four, you appear to be of the incorrect view that because you strongly believe in your case and are representing yourself, you are not subject to the court’s normal rules.
Five, you appear incapable of controlling your behaviour and unable to cope with any setbacks, such as a question or answer or ruling you do not like.
Six, you appear to be incapable of focusing on what is relevant to this proceeding.
Seven, you appear to believe that this court has an obligation to permit you to do and say what you feel like, even though this may waste the court’s time, add to the defendants’ costs and unnecessarily prolong the proceeding. You appear to believe that you have a right to insist that this hearing take as long as you want it to take.
Eight, you appear not to understand the advice I have provided about the risks facing you in this proceeding, including that you might lose on some or all of your claims and might then face an enormous costs bill which could result in you losing some of your assets and possibly being bankrupted.
Nine, I am concerned that you may not be capable of logically assessing the strengths and weaknesses of your case as the evidence progresses and may not be capable of making a logical decision about the future of the litigation, including in relation to any settlement proposal that may be made.
Ten, I have a real concern that on your performance to date this hearing will take another two to five months and that the strain of such a long, complex case might be too much for you and worsen your illness.
Eleven, you appear incapable of understanding what is unacceptable behaviour in court, even after repeated explanations. Some examples of unacceptable behaviour are[:]
(1) you said that my views are criminal, Transcript Page 1264.
(2) You told me to get lost and that I am part of this corruption, Transcript 1767.
(3) You have behaved in a threatening and abusive manner towards Mr Gipp, Transcript 1980 and 1984-1985. You have also behaved in a threatening and abusive manner towards Mr Ihle, Transcript 1425.
(4) You stormed out of court screaming in Macedonian and kicking the wall on your way out, Transcript 1425-1426.
(5) You tore up part of your passport in court, Transcript 1984-1985.
(6) You have acknowledged that you prefer to have a plastic cup instead of a water glass at the Bar table because of what you might do with the water glass, Transcript 2003.
(7) You stood on a chair at the Bar table, Transcript 1872.
(8) You have directed a witness, namely Mrs Slaveska, not to answer questions and not to cooperate with cross examining counsel, Transcript 1883-1884 and 2482.
(9) You constantly use offensive language, including fucker, towards counsel, which is inappropriate in court, Transcript 2556.
(10) You constantly interrupt and make rambling speeches despite being directed not to do so, Transcript 2476-2480.
(11) You have wild mood swings, ranging from the aggressive and abusive to the tearful and apologetic, Transcript 1235-1237, 1424-1426, 1766-1768, 2556-2561 and 2564.
(12) You repeatedly disobey basic directions from the judge and interrupt and argue with the judge, Transcript 2476-2480, 2482-2483.
Finally, you poured the entire contents of your pill box in your mouth on 15 September 2009, Transcript 2556-2558.
I just mention those specific incidents and those general tentative concerns, as I mentioned, as a matter of giving you notice of some of these concerns Mr Slaveski. As I said I don't - you may sit down, it's fine. I haven't formed a view as to whether these incidents or this type of behaviour means that you are incapable of managing your affairs in relation to this proceeding, but I see them as potentially relevant.
The need for expert psychiatric evidence

There was general agreement that before any decision could be made about the appointment of a litigation guardian, it was necessary for the Court to receive expert psychiatric evidence. In this context, the applicability of s 28(2) of the Evidence Act 1958 (Vic) and the exception in s 28(5)(c) was discussed. It was not necessary for me to make a ruling on s 28 of the Evidence Act, however, because Mr Slaveski informed the Court that he was prepared to be examined by a psychiatrist and that he consented to the psychiatrist providing a report to the Court and to the psychiatrist attending the Court for the purpose of giving oral evidence, if that is necessary.

Mr Ihle submitted that an appropriate course would be for Mr Slaveski to be examined, at the State’s expense, by an independent forensic psychiatrist selected by PILCH, and for that psychiatrist to provide a report to the Court and, if necessary, to give oral evidence. Mr Slaveski agreed to this course.

Mr Ihle also submitted that once the report of the psychiatrist is received, consideration might need to be given to referring the question of the appointment of a guardian or administrator for Mr Slaveski to the Victorian Civil and Administrative Tribunal pursuant to s 66 of the Guardianship and Administration Act 1986 (Vic), as an alternative to the appointment of a litigation guardian by this Court under Order 15.

Mrs Slaveska asked whether Mr Slaveski could obtain a second opinion from his own psychiatrist and I informed her that he could do so.

There then followed a discussion of the questions that the psychiatrist should be asked to consider in his or her report and the materials that should be provided to the psychiatrist to assist his or her consideration of those questions.

As Mrs Slaveska indicated that she would be willing to be appointed litigation guardian for Mr Slaveski, there was some discussion of the responsibilities of a litigation guardian and the risks involved, including the risk of being personally liable for the costs of the proceeding from the date of appointment. It was common ground, however, that further consideration of this issue should be deferred until after the Court receives expert psychiatric evidence.

Adjournment pending receipt of psychiatric report

It was agreed that the hearing be adjourned to 24 September 2009 to enable the parties to make inquiries about the availability of a suitable forensic psychiatrist and consider the questions to be referred to the psychiatrist, the contents of the engagement letter and the materials to accompany the engagement letter.

It was agreed that the substantive hearing of the proceeding be adjourned to 1 February 2010 so that the parties could have adequate time to engage a psychiatrist to examine Mr Slaveski and to prepare a report, and for Mr and Mrs Slaveski to seek legal assistance and to investigate further the possible appointment of a litigation guardian.

I had informed the parties at the outset of the hearing that if the hearing did not conclude by 25 September 2009, it would be adjourned to 1 February 2010 because, earlier in the year, I had been allocated another long trial commencing on 5 October 2009 which was expected to be completed by Christmas. The fact that on 25 September 2009 the hearing would, in any event, have to be adjourned to 1 February 2010 was a factor that I took into account in adjourning the hearing rather than making a self-executing order of the type suggested by Mr Wilson.

Liberty to apply will be reserved. As discussed with the parties, a brief mention will be convened once the forensic psychiatrist’s report is received, so that I can give directions on procedural issues, such as whether the psychiatrist will be required to give oral evidence.

[2009] VSC 423

24 September 2009