Slaveski v Victoria - [2009] VSC 423

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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2009] VSC 423
Decision Date: 24 September 2009

CaseChat Overview and Summary

The plaintiff, Slaveski, appeared before the Supreme Court of Victoria to bring an action against the state of Victoria. Slaveski, who was self-represented and had an apparent mental illness, exhibited threatening, abusive, and disobedient behaviour during the hearing. The plaintiff attempted to overdose on medication during the hearing, posing a risk of harm to herself and others in the courtroom. This behaviour led to significant disruption and delay in the proceedings.

The court was required to determine whether it had the inherent jurisdiction to stay or dismiss the proceedings without adjudicating on the merits due to the plaintiff's disruptive behaviour. Additionally, the court considered the application to appoint a litigation guardian and the adjournment of the hearing pending receipt of an independent psychiatric report.

The court found that it had the inherent jurisdiction to stay or dismiss the proceeding without adjudicating on the merits in exceptional circumstances where the behaviour of the plaintiff caused significant disruption and delay. The court also noted that under Order 15 of the Supreme Court (General Civil Procedure) Rules 2005 (Vic), a litigation guardian could be appointed to assist a party who was unable to manage their own litigation. The court granted the application for the appointment of a litigation guardian and adjourned the hearing pending receipt of an independent psychiatric report.

The court ordered that the hearing be adjourned until a later date to allow time for the plaintiff to receive appropriate medical treatment and for an independent psychiatric report to be obtained. The court also ordered that a litigation guardian be appointed to assist the plaintiff in managing her litigation.

Orders