Appellant v Respondent

Supreme Court of Victoria|2012-09-26|Before: DIXON J

PRACTICE AND PROCEDURE - application for re-hearing of appeal from an associate judge to a judge in the practice court - summary dismissal under r 58.10(8)(b) of the Supreme Court (General Civil Procedure) Rules 2005 of an appeal under s 109 of the Magistrates' Courts Act 1989 (Vic) - appeal dismissed on unexplained absence of appellant to prosecute appeal - Relevant considerations - whether sufficient explanation of appellant's failure to attend court provided - whether appeal enjoyed any real prospects of success - whether futile to set aside order dismissing the appeal - whether prejudice to the party with the benefit of the order - r 58.10(8)(b) Supreme Court (General Civil Procedure) Rules 2005.

2 On 19 August 2011 pursuant to s 109 of the Magistrates' Court Act 1989, Mr Slaveski appealed the magistrate's order. The grounds of his appeal were described in his Notice in the following terms:

The Supreme Court has the ultimate power pursuant to the Constitutional Act 1975, section 85 to vary the Orders made by the Magistrates' Court
The Supreme Court has the ultimate power pursuant to the Constitutional Act 1975, section 85 to order hearing de novo or to hear the matter
The Magistrates made an error continuing the case in my absence
Magistrate Lauristen was bias/in conspiracy, and ordering Registrar John Walsh to take my case from Magistrate Graeme Johnson Court room and take it to Magistrate Lauristen
The Magistrate violating my Human and Legal Rights
Depriving me of having a fair hearing
Magistrates/ordering 2 Vic/Prot/Police officers with Guns sitting right behind me, and putting my life in jeopardy, regardless the Appellent asking the Magistrates to have security in the Court room with No - GUNS, and or telling the 2 Vic/Prot/Police officers with Guns to sit away from my back
Increasing my level of anxiety
Abuse of my legal rights
Not allowing my wife to represent me, due to my disability
Neglected my mental health and request for my wife to talk on my behalf
Continuing with the hearing in my absence
I have my Human Rights and Medical needs
Natural Justice.

3 On 23 September 2011 by summons, Mr Slaveski sought a stay of the order of the Magistrates' Court. When that summons returned before an associate judge on 26 September 2011, an oral application was made by Rotstein to dismiss the appeal pursuant to R 58.10(8) of the Supreme Court (General Civil Procedure) Rules 2005. That application was heard by the associate judge on 14 November 2011, who later ordered that the appeal be summarily dismissed with costs. Mr Slaveski then appealed the associate judge's order to a judge in the Practice Court.

4 On 3 September 2012, on the first return of the appeal before Kaye J, there was no appearance by, or for, Mr Slaveski and his Honour dismissed the appeal with costs. By summons filed 12 September 2012, Mr Slaveski seeks to set aside Kaye J's order and it is this application which is now before me in the Practice Court.

5 Mr Slaveski did not appear. His wife Snezana Slaveska applied for leave to appear on Mr Slaveski's behalf on this application. She did do on the following basis.

6 I was informed that Mr Slaveski is currently in Thailand, apparently seeking medical assistance, an assertion that was not corroborated by evidence. Mrs Slaveska submitted that the expiry of a bankruptcy notice on 19 September 2012 created circumstances of urgency. Further, Mrs Slaveska has been granted leave to represent Mr Slaveski in other proceedings in this court.[1] Although not persuaded by evidence about Mr Slaveski's current whereabouts and circumstances, I granted limited leave to Mrs Slaveska to make submissions on this application.

7 Mrs Slaveska's initial application was that if I held any shares in the Commonwealth Bank of Australia I should disqualify myself from hearing this application on the ground of apprehended bias. Informing Mrs Slaveska that my superannuation trust fund did hold shares in the Commonwealth Bank, I invited her to develop her application which I then rejected by an ex tempore ruling. These are my revised reasons for that ruling.

8 I have before me an application that I disqualify myself from proceeding further in this matter on the grounds of apprehended bias.

9 The principles in relation to apprehended bias are wellestablished and were recently considered by the High Court in British American Tobacco v Laurie,[2] where the court reaffirmed that the test is whether the fairminded, hypothetical observer would consider that the tribunal may not bring an impartial mind to the resolution of the proceeding and decide the issues according to the facts and the law.

10 The basis for this application is my response to a question from Mrs Slaveska, who appears for the applicant by my leave, that my superannuation fund holds shares in Commonwealth Bank.

11 It must necessarily follow that what Mr Slaveski contends is that I do not appear impartial, or that he apprehends bias, in the resolution of his interlocutory application in an appeal from a Magistrates' Court judgment entered in a proceeding concerning the recovery of costs due for legal services between Mr Slaveski and a firm of solicitors, Rothstein & Associates Pty Ltd.

12 There it is no direct connection between the Commonwealth Bank and either this application or the Magistrates' Court proceeding. The initial consideration is why a fairminded observer would perceive, or apprehend, bias. The outcome of this case cannot affect the Commonwealth Bank one way or the other. It cannot affect the interest that my superannuation fund holds. There is no basis for a fair minded observer to consider that I am other than disinterested in the issues before me and will decide them according to the facts and the law and no other consideration.

13 Mrs Slaveska contended that there was a connection by which it might be thought that the bank could benefit from this proceeding. The fees that are the subject of the proceedings in the Magistrates' Court were charged by Rothstein in the defence of a proceeding in this court between Commonwealth Bank and Mr Slaveski. A conspiracy between the bank and/or its former solicitor, Gadens Lawyers, and Rothstein was asserted. This allegation is scurrilous, unsupported by evidence.

14 No fairminded observer would accept that allegation without some evidence. Even if it was accepted, no fair minded observed could possibly conclude that the bank stood to benefit in some way from the proceeding before the Magistrate. There is no connection between the comments that are attributable to a solicitor at Gadens, then representing the Commonwealth Bank - who allegedly said, "You'll never win because all the judges have shares in the bank", - and the bank itself. Neither is there any connection between that statement, if it was made, and I do not accept that it was made, and this application or any issues that arose in the proceeding.

15 For these reasons, a fairminded observer would not for one moment contemplate any apprehension of bias in this application being dealt with by me and the application that I disqualify myself for apprehended bias is rejected.

16 Mrs Slaveska was invited to address the following issues. She did not suggest that any other, or different, issue ought to be addressed.

(a) Has the application to set aside the order of the court on 3 September 2012 been made promptly?

(b) Is there a sufficient explanation for the failure of Mr Slaveski, or his representative, to attend court on the return of the appeal from the associate judge on 3 September 2012?

(d) If the order is set aside, will Rotstein be prejudiced in a matter that cannot be compensated by an award of costs or security for costs?

17 I informed Mrs Slaveska that I accepted that this application had been promptly made and it was unnecessary to address that issue.

18 In addressing the remaining issues, Mrs Slaveska provided a combination of submission, references to evidence contained in affidavits and assertions from the Bar table. Counsel for Rotstein objected to evidence from the Bar table. A document 'Submissions of Mr Ljupco Slaveski' dated 12 September 2012 was also referred to. In addition, on two occasions, after the matter was stood down and after the lunch adjournment, Mrs Slaveska stated she had Mr Slaveski's further instructions received by telephone.

19 Mrs Slaveska submitted that the explanation for Mr Slaveski's non-attendance at court on 3 September 2012 was that he had been directed by a police officer on the preceding day that he should not attend court. Mrs Slaveska has deposed in an affidavit that Mr Slaveski was told by police not to attend the Supreme Court. She produced an email, apparently received from that police officer, which states:

I advised Mr Slaveski not to attend the Supreme Court on Monday 3rd September 2012 due to an investigation that I was conducting at that time. Please contact me on [phone number] if you require further.

The email identifies the name, rank and number of the police officer and I accept it as genuine.

20 However, there is much that is unsaid. When asked why she did not attend court on 3 September 2012 on his behalf, Mrs Slaveska stated that she too had been warned not to attend court. I do not accept that such a warning was given to Mrs Slaveska. There is no evidence that the police officer's direction extended to Mrs Slaveska, either in the email, her affidavit, or some correspondence with the chambers of Kaye J that Mrs Slaveska exhibits to her affidavit. My attention was drawn to a facsimile transmission that was forwarded to the chambers of Kaye J at 10.32am on 3 September 2012, which I infer did not come to his Honour's attention until he had made orders in the matter that day. Mr Slaveski's facsimile also does not refer to Mrs Slaveska being warned not to attend court.

21 I was concerned that a litigant may have been discouraged inappropriately from attending court leading to the dismissal of his application, particularly as the police officer did not reveal in the email his reasons for so directing Mr Slaveski. Having listened to the recording of proceedings before the magistrate, and in the context of other incidents involving Mr Slaveski, it is feasible that the police officer had good grounds for directing Mr Slaveski to stay away from the court. Those grounds would not apply to Mrs Slaveska, but I am not satisfied that she was so directed. Although I make no criticism of the police officer, whose version of events I have not heard, it would be unfortunate if the police were taking it upon themselves to direct litigants not to attend court, when their attendance was required, without either informing the litigant that someone should attend on their behalf, or informing the court what had been done.

22 Mr Slaveski had no affidavit from the police officer nor was he called to give evidence. In the email, the police officer refers to the direction being given because of an ongoing investigation, an explanation that does not reveal his reasons for so acting. There are statements to be found in the transcript of the proceeding before the magistrate, and in the correspondence with the chambers of Kaye J that might support an inference that the police officer suspected that Mr Slaveski may have intended to be armed when he came to court on 3 September 2012. Not being represented, Mr Slaveski possibly did not understand that he could send Mrs Slaveska to represent him, but I doubt that this is so. He was expecting that his wife could stay before the magistrate and represent him when he elected to leave the hearing to make an application in the Practice Court. He expected when he went to Thailand and was not available on this application, that his wife could represent him.

23 Despite my reservations, in these circumstances, and particularly because Mr Slaveski is not legally represented, I accept that a sufficient explanation for his failure to attend court on 3 September 2012 has been given, namely, that he was instructed by a police officer not to attend court for an undisclosed reason.

24 Turning to the issue of whether the appeal from the associate judge had merit, neither Mrs Slaveska's affidavit not Mr Slaveski's submission addressed in detail whether the application that was dismissed had merit. The associate judge had reserved her decision and published her reasons. She distilled, in my view correctly, from Mr Slaveski's notice of appeal the following grounds:

(a) The learned magistrate was in error by continuing to hear the proceeding in Mr Slaveski's absence, such absence having been caused by the agitation and upset of the presence in the courtroom of armed PSOs;

(b) The learned magistrate was in error by refusing to allow Mr Slaveski to be represented by his wife, during Mr Slaveski's health problems and disability.

(c) The learned magistrate was biased, and was in fact engaged in a conspiracy in having the case transferred from magistrate Johnson to himself on 25 January 2011.

(d) While it is not expressly referred to in the notice of appeal, it is apparent from the affidavits in support of the appeal that Mr Slaveski is critical of Magistrate Lauristen's conduct in allowing Rotstein to file its defence and counterclaim late, in not transferring the proceedings to the County Court, and maintains his allegations that the recording of the hearing on 27 January 2011 has been tampered with, thus thwarting his prospects of success in an application to this court for injunctive relief.

25 It became clear during the course of the hearing that Mrs Slaveska did not have a copy of the associate judge's reasons. To assist Mrs Slaveska to address the issues to be considered on the application, counsel for Rotstein provided her with a copy of the reasons and she considered them over lunch. The reasons of the associate judge not only deal with many of the concerns raised by Mr Slaveski but, more particularly, focus on the issues that arise on the application. Does the notice of appeal from the decision of the magistrate, raising grounds of denial of natural justice by procedural unfairness, have any real prospect of success.

26 Counsel for Rotstein adopted, effectively as his submissions, the reasons of the learned associate judge and for my part, being satisfied that the conclusion reached by the learned associate justice is soundly based, I accept the submissions for Rotstein. As an appeal would be a re-hearing de novo, I have looked at the material filed in support of the appeal that was considered by the associate judge.

27 In doing so, I, too, determined that it would be necessary for me to listen to the recording of the Magistrates' Court hearing on 25 July 2011. It is illuminating. The magistrate first heard Mr Slaveski's application that he disqualify himself on the grounds of actual bias and delivered his reasons for ruling that he would not do so. Immediately after learning that the application had failed, Mr Slaveski demanded of the magistrate that the security guards be asked to leave the court, claiming that 'I get eyed by them and feel threatened. Why must you do that? I'm just going to pack up my documents and I'll leave'. The magistrate told Mr Slaveski that the case will proceed. Mr Slaveski restated his demand saying 'Are you going to threaten me, are you threatening me? Do you people think I am scared? I already sue 23 police officers'. The magistrate again stated that the matter would proceed and Mr Slaveski replied 'Good I'll go straight to the Practice Court. Do you think I'm joking? I don't joke I'll go straight to the Practice Court'. The magistrate invited Mr Slaveski to take a moment to think about what he was doing. The magistrate again explained that the case would proceed in his absence.

28 These circumstances are the basis for the agitation and upset from the presence in the courtroom of armed PSO's referred to in the first ground of the appeal. There is some agitation evident, but Mr Slaveski is aggressive and in apparent control of himself and his circumstances. He does not sound scared, fearful, panicky, or in any way constrained in advocating his interests as he perceived them to be. The associate judge aptly described him as 'lucid and focussed'.

29 At this point before the magistrate, Mr Slaveski focussed on the subject of his counterclaim. Before continuing to describe what occurred on the application to amend the counterclaim, I will note Mr Slaveski's description of those events that I have already related in his affidavit of 19 August 2011 in this proceeding:

I left the courtroom because the magistrates called two Victoria Pro/police (their names officers Stanley and Susan Daley) and they were standing behind me with their guns, and the third one was outside the court, this is because I asked the magistrate to disqualify himself. I asked and requested to the magistrate to get the two Victoria pro/police officers to sit either on the corner of the courtroom, or outside the courtroom where the third one was or to get security with no guns as I am scared to stay near police with guns in their possession, and I have sued the State of Victoria and 23 police members and have been threatened to get killed/shot on numerous occasions ... Also the reason I am scared is because I suffer from post traumatic stress disorder, anxiety and panic disorder, and have been threatened to be shot by police officers on few occasions and that is why I am suing police officers in the Supreme Court, and I feel nervous when I see them or especially when they stand behind me with their guns. After magistrate Lauristen rejected and ignored my requests on many occasions, I further requested to the magistrate to allow my wife to take over the case instead of me but he still refused, so I was feeling very dizzy. I took my tablets, to [calm] down, but I was still scared, I was talking and instead of looking at the magistrate, I was talking had my back to the magistrate, and I was looking at the two Victoria pro/police officers, and started to have palpitations on my heart and left the court and told him the magistrate to let my wife take over instead of me, and that I was going to the Supreme Court to complain, which I did ...

30 Mrs Slaveska submitted to me that the crux of the procedural unfairness was that Mr Slaveski said to the magistrate that he was going to leave the court as he didn't feel safe and that he didn't feel well, but the magistrate, to his disadvantage, continued with the hearing. Mrs Slaveska submitted these contentions were made out from the CD containing the audio recording of the hearing. This proposition is untenable, demonstrated by examining the circumstances in which Mr Slaveski did leave the court.

31 The audio transcript before the magistrate reveals that following the exchange in which Mr Slaveski sought to have the security removed from the court, he remained in court and argued, extensively and without apparent anxiety, nervousness or concern about the presence of the PSOs, an application to amend his counterclaim to increase the damages claimed from $98,000 to $124,000. That application took at least 10 minutes, during which period the magistrate patiently explained to Mr Slaveski that the counterclaim could only be entertained if he abandoned the excess above the court's jurisdiction. Once he appreciated that the amendment would not be allowed, Mr Slaveski renewed his application that the magistrate disqualify himself. That application was again refused, the magistrate explaining his reasons for that refusal. These are the circumstances that support the fourth matter, referred to as a ground not specifically raised in the notice of appeal.

32 Mr Slaveski then asked that the proceeding be stood down while he went to the Supreme Court. The magistrate again explained that the matter would not be stood down but would continue in his absence. Mr Slaveski asked that Mrs Slaveska stay and conduct the proceeding for him, which was refused. It is pertinent to record that Mr Slaveski did not want Mrs Slaveska to stay and conduct his defence because he was suffering health problems and disability. There was no mention of such matters and no possible indication to the magistrate of such matters by inference from what occurred in court. The magistrate did not and would not have reasonably drawn such an inference from the conduct I have set out above at [27]. These are the circumstances that support the second ground of appeal.

33 It took some time for Mr Slaveski to leave the court, and during that period the magistrate courteously invited him to make up his mind whether he wanted to stay or leave. Although he briefly referred again to the presence of the two PSOs, at no stage since the matter had first been raised did he express concern about the presence of the PSOs or state to the magistrate that he was feeling anxious, panicking, nervous, feeling dizzy, or in any other way unable to continue with the proceeding.

34 Although I was concerned, having regard to Mr Slaveski's well documented concerns, that he may have been denied procedural fairness by the presence of armed PSOs in court restricting his capacity to fairly present his arguments and evidence, the transcript of proceedings before the magistrate makes it plain that Mr Slaveski was not so impeded or hampered before the magistrate. Further, Mr Slaveski's position is not helped by comparing his affidavits filed in support of the appeal with that transcript.

35 In all other respects I would, with respect, adopt the reasoning of the learned associate judge. The magistrate committed no error in continuing to hear the proceeding in Mr Slaveski's absence. His absence was not caused by agitation and upset at the presence of armed PSOs within the courtroom. Mr Slaveski well understood that the case would proceed in his absence and he left the hearing voluntarily, and for his own tactical reasons. Mr Slaveski probably intended to persuade the magistrate into acceding to his demands with his stated intention to go immediately to the Practice Court and make an application to restrain the magistrate. Not being legally advised, Mr Slaveski would not appreciate that such an application was bound to fail. In any event, no such application was made.

36 The proper course for Mr Slaveski to have adopted would have been to complete the hearing. If his defence had ultimately failed he could have then considered his position. That the proceeding continued in Mr Slaveski's absence was entirely the result of his petulant display towards the magistrate's rulings. I am satisfied that for these reasons neither the first nor the second ground of appeal upon which Mr Slaveski seeks to proceed is tenable.

37 Turning to the third ground, there is no evidence of any conspiracy against Mr Slaveski's interests. No evidence is to be found in the circumstances of the transfer of the proceedings from one courtroom to another on 27 January 2011. Equally there is no evidence of the conspiracy that Mr Slaveski asserts involving the Commonwealth Bank. As I understood it, Mr Slaveski claims that the Commonwealth Bank is conspiring with Mr Rotstein to take possession of his home. This allegation is not raised in relation to the proceedings before the magistrate and must be confined to Mr Slaveski's more recent apprehended bias application against me.

38 The final ground which, as the associate judge noted is not expressly stated in the notice of appeal, concerns the procedure on the counterclaim. I would add to the reasons expressed by the learned associate judge that the magistrate gave Mr Slaveski every opportunity to prosecute his counterclaim, if he limited it to the jurisdiction of the court.

39 For these reasons, I am satisfied that the appeal has no real prospects of success. Although Mr Slaveski has an explanation for his failure to attend at the hearing on 3 September 2012, it would be futile to set aside the order that was made by the court that day. In reaching this conclusion I have considered s 64 of the Civil Procedure Act 2010 but I can find no basis to conclude that it is not in the interests of justice to summarily dismiss this appeal and I do not consider that the dispute is of such a nature that only a full hearing on the merits is appropriate.

40 That is sufficient to dispose of this application, but for completeness, I will add that I accept that the respondent will suffer relevant prejudice. Although the respondent will suffer prejudice of a kind that might be thought compensable by an order for costs or security for costs, there is no basis to expect that any order for costs on this application would be satisfied or that appropriate security could be provided. The history of delay in the proceeding before the magistrate was recited by the associate judge and I need not repeat it. In this respect, the observations of the plurality in AON Risk Services Australia Ltd v Australian National University[3] are apposite. Mr Slaveski's self-indulgent and egocentric attitudes are probably a significant burden to the litigants that are in dispute with him. I see no basis for concluding that Rotstein & Associates will not suffer relevant prejudice if the orders in its favour are set aside.

41 For these reasons the application was dismissed.

[1] See, for example, Slaveski v State of Victoria [2010] 25 VR 160

[3] [2009] HCA 27; (2009) 239 CLR 175, at 213 [99] - [101]

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