Plaintiff v Defendant

Supreme Court of Victoria|2011-05-19|Before: ZAMMIT AsJ

Practice and Procedure ― Application for extension of time in which to serve writ ― Discretion to extend time ―Delay ― Balance of Prejudice ― whether good reason for exercise of discretion ― Supreme Court (General Civil Procedure Rules) 2005, r 5.12

For the 8th, 9th, 10th, 11th, 12th, 15th, 16th, 17th and 19th Defendants

1 Mr Slaveski makes an application by summons dated 30 July 2010 to extend the period of the validity of the writ filed 31 July 2009.

2 Mr Slaveski issued a generally indorsed writ naming 13 defendants on 31 July 2009. Subsequently, Mr Slaveski filed two statements of claim. The first dated 14 February 2011 was pursuant to an order of this Court dated 2 December 2010. The second, dated 8 April 2011 was not pursuant to an order but is fundamentally the same as the 14 February document. Mr Slaveski did not formally seek leave to file the 8 April statement of claim but relied on the document.

3 To avoid confusion any reference to the statement of claim, is the 8 April 2011 document. I will refer to the defendants in the order they are identified in the 8 April 2011 statement of claim. I will refer to the 19 defendants as the "defendants" rather than differentiate between the opponent defendants and prospective defendants as was used in the course of submissions by the defendants.

4 Mr Slaveski appeared in person. The statement of claim is a lengthy document which is difficult to follow. It makes allegations concerning the superintendence of the police force, the investigation of numerous complaints about police, the conduct of police officers in numerous events, events at 2 shopping centres, malicious prosecution, conspiracies and the conduct of 2 telecommunications providers. Mr Slaveski claims to have suffered injury, loss and damage.

5 The claim relates to incidents which are alleged to have occurred between 2000 to May 2008.

6 Mr Slaveski relies upon three affidavits; two affidavits of Mr Slaveski sworn 30 July 2010 and 2 May 2011; and affidavit of Snezana Slaveska sworn 30 July 2010. He also filed with the Court a written submission dated 6 May 2011.

7 Mr Slaveski has not attempted to serve these affidavits upon any of the defendants.

8 Mr Slaveski previously brought proceedings against 23 defendants in this Court in proceeding number 08519 of 2006. The matter was heard before His Honour Kyrou J. To avoid confusion I will refer to that proceeding as the "First Proceeding".

Facts concerning application to extend validity of the writ

9 The important relevant facts can be summarised chronologically as follows:

Issue of generally indorsed writ against 13 defendants.

Mr Slaveski filed an ex parte summons pursuant to r 5.12(2) and 5.1(3) of the Supreme Court (General Civil Procedures) Rules 2005 seeking an order to extend the period of validity of the writ.

Mr Slaveski appeared in person at which time the issue of whether he needed a litigation guardian was raised before the Court. The hearing was adjourned to 29 September 2010. Orders were made that Mr Slaveski was to file a statement of claim by 3 December 2010 and the application to extend the period of validity was adjourned.

Mr Slaveski filed a statement of claim naming 19 defendants.

Mr Slaveski filed a second statement of claim naming 19 defendants.

Orders were made that Mr Slaveski serve the summons dated 30 July 2010 on all prospective defendants and that the prospective defendants may file and serve any written submissions by 27 April 2011.

10 Mr Slaveski informed the Court that he was unable to serve the 12th, 13th and 14th defendants. Mr Slaveski deposes that he was unable to serve the 12th defendant as the 12th defendant was on leave and the 13th and 14th defendants on the basis that they were no longer members of the Victoria Police Force and that the solicitors acting for the State of Victoria did not have instructions to accept service on their behalf and that he did not know their last known address. The 7th defendant provided written submissions to the Court but did not appear. I have not relied upon those written submissions.

11 Mr Slaveski submits that the period of validity of the writ should be extended for the following reasons:

Mr Slaveski was present at the First Proceeding from 3 August 2009 to 22 June 2010. The First Proceeding "was the biggest and most important thing" that he had to deal with in this period. Mr Slaveski could not deal with the current matter nor get any legal assistance because he had to concentrate on the First Proceeding;[1]
After the First Proceeding was completed, Mr Slaveski was forced to leave Victoria on or about 2 June 2010. On 2 June 2010 he and his wife were followed by six to seven police vehicles, marked and unmarked, and that threats were made to them by the police;[2]
On or about 2 June 2010, Mr Slaveski went to New South Wales where he remained for approximately three and a half weeks. This was necessary due to threats that were made to him;
On 1 July 2010 Mr Slaveski's wife and children went to New South Wales. On 1 July 2010 he and his family were "punched and kicked" and that they were "put all in custody for three hours".[3]
Mr Slaveski was hospitalised;
Since 2 July 2010 Mr Slaveski has been required to travel to Sydney on 18 occasions in order to deal with various court commitments;
Mr Slaveski's father died on 27 October 2010;
Justice Kyrou handed down his decision in the First Proceeding on 1 October 2010 .[4]

12 The defendants submit that Mr Slaveski failed to advance a good reason to extend the period of the writ's validity. The defendants submit that none of the matters advanced by Mr Slaveski amount to a good reason for the purpose of the exercise of discretion to extend the period of validity of the writ. The defendants contend that the matters raised by Mr Slaveski do not adequately address the reason for the writ not being served, nor why the extension should be granted. The defendants submit that the plaintiff's waiting for an outcome in other litigation does not amount to a good reason.[5]

13 The defendants note that even though the First Proceeding occupied a significant amount of Mr Slaveski's time between August 2009 and August 2010, Mr Slaveski was represented by his litigation guardian and lay advocate from 29 January 2010. The defendants contend that Mr Slaveski has not provided a reason to the Court as to why the writ could not have been served between the time his litigation guardian was appointed and the time for the writ's expiry under the Rules. Further, the defendants submit that there is no evidence before the Court that Mr Slaveski is incapable of handling his own legal affairs or that he requires the assistance of his wife. The defendants note that the contrary position has been identified and refer to the orders made on 29 September 2010 where in other matters it is stated "Mr Slaveski was able to represent himself without any difficulty".

14 The defendants submit that Mr Slaveski's health issues and other court commitments do not amount to a good reason as to why the writ was not served on the defendants and nor is it a good reason why the time should be extended. The defendants note that the plaintiff's affidavit material does not provide any adequate connection between the alleged health issues or court commitments in New South Wales and his inability to serve the writ. The defendants contend that the affidavit material does not provide details as to what the health issues or court commitments are and in what way they occupied the plaintiff's time so extensively so as to deprive him of the opportunity to effect service of the writ.

15 The defendants submit that the plaintiff's departure from the State, his three and a half hours of incarceration and allegations that he and his family were assaulted do not give rise to a good reason. The defendants contend that the plaintiff's decision to vacate the jurisdiction and what happened whilst he was away, are not relevant to the current application. It is submitted that there is no evidence that his ability to serve the writ was in any way impeded by matters beyond his control, beyond the fact of his arrest and being in custody for three hours.

16 The defendants also contend that Mr Slaveski's ability to comply with orders made by this Court on 29 March 2011 with respect to the service on the defendants of numerous documents, including the writ, is evidence of the relative ease with which he could have complied with the Rules. The defendants note that Mr Slaveski was able to effect service on all the defendants, bar the 13th, 14th and 15th defendants, within one month of the order being made.

17 The defendants submit that the claim is likely to be statute barred by reason of the provisions of Part IIA of Limitations of Actions Act 1958 (Vic). Further, the expiry of more than a decade since the happening of the incidents giving rise to the plaintiff's action, gives rise to a general prejudice to the defendants. The defendants contend that these are matters militating against the exercise of a discretion to extend the period of validity of the writ.

18 In addition to the latter submissions, the sixth defendant, Vodaphone Hutchison Australia Pty Ltd, submits that Mr Slaveski seeks to agitate in this proceeding a claim against Vodaphone that should have been made in the First Proceeding and that Anshun estoppel now precludes him from doing so.

19 The second and third defendants, Pacific Shopping Centres Australia Pty Ltd and Doug Lowe, submit that the proposed proceeding against them is by reason of the First Proceeding, an abuse of process. That is, Mr Slaveski seeks to re-litigate the issues found against him in the First Proceeding. Further, on the evidence led in the First Proceeding, the proposed claim has no real prospect of success and does not disclose a cause of action. The second and third defendants submit that an extension of the period of validity of the writ because of the above matters should not be granted, as the extension would in any event be futile.

20 The fourth defendant submits that it would be an abuse of process to extend the period of the validity of the writ, as the same subject matter that was in issue in the First Proceeding, where findings made by His Honour Kyrou J in Slaveski v State of Victoria and ors[6] are sought to be re-litigated. Further, the fourth defendant contends that the duty of care which the plaintiff alleges the fourth defendant owed him is not recognised at law. In summary, the fourth defendant submits that the statement of claim does not disclose a cause of action against it and has no prospect of success.

21 Rule 5.11(1) provides that a proceeding shall be commenced by filing the originating process. Rule 5.12 then provides:

(1) A writ or an originating motion shall be valid for service for one year after the date is filed.

(2) Where a writ or originating motion has not been served on a defendant, the Court may from time to time by order extend the period of validity for such period from the day of the order as the Court directs, being not more than one year from that day.

(3) An order may be made under paragraph (2) before or after the expiry.

...

22 It is clear from the terms of Rule 5.12(2) that the Court has a wide discretion to extend the period of validity for service of the writ, either before or after the period for service has expired. Such discretions conferred by legislation are to be exercised judicially having regard to all the relevant circumstances.

23 In Ramsay, Young CJ, with whom Kaye and Southwell JJ agreed, said that although the rule does not refer to "good reason," as did the old rule, [7]

[T]here should be implied as a matter of construction a condition that the power to extend a writ or other originating process should only be exercised for good reason.

The plaintiff bears the onus of persuading the Court that there is good reason to justify the exercise of the discretion to extend time for service in the plaintiff's favour.

24 In Ramsay's case and subsequently in, Protec Pacific Pty Ltd,[8] it was noted that the merits of the plaintiff's case is not a relevant consideration. Mr Ross, counsel for the sixth defendant, submits that Ramsay's case and Protec's case can be distinguished from the current case. In Ramsay's case, Young CJ, in rejecting an attempt to raise the merits of the plaintiff's case, said:[9]

I shall not go into that question because this is not a pleading summons. In a pleading summons it may or may not be that some criticism could be made of the document on that ground. This Court on this appeal does not look at the statement of claim for the purpose of a pleading summons, but to ascertain the substance of the matter which is before the Court.

25 It is submitted that neither Ramsay nor Protec's case stand for the proposition that the Court when considering whether to extend the period of time for the validity of a writ can consider Anshun estoppel. The sixth, second and third defendants submit that Anshun estoppel is not a pleading point and does not require the Court to assess the merits of the case and therefore can be taken into consideration.

26 I consider that any argument based on an Anshun estoppel, an abuse of process or a failure to disclose a cause of action, requires an analysis of the pleadings and to a degree the merits of the case. In Ramsay's case, his Honour, in considering whether the document before him was technically a statement of claim, noted that he would not go into the question because it was a pleading summons. His Honour went further and said that the Court did not look at the statement of claim for the purpose of a pleading summons but to ascertain the substance of the matter which is before the Court. Looking to the statement of claim for the purpose of determining whether there is an Anshun estoppel, an abuse of process or a failure to disclose a cause of action, amounts to more than ascertaining the substance of the matter before the Court. Any attempt to rely on the principles of abuse of process or Anshun estoppel should be made by the defendants by way of an application to dismiss or stay Mr Slaveski's claim. This could be done for example by way of a summary judgment or strike out application. This would require the defendants to go on affidavit and comply with all the necessary requirements under the Rules. There is no such application before the Court by the defendants as there was in Protec's[10] case.

27 Mr Slaveski commenced proceedings against the defendants (originally 13) on 31 July 2009. Pursuant to the Rules he had 12 months in which to serve the writ on the defendants. On 30 July 2010 Mr Slaveski filed the summons seeking an order that the Court extend the period of the validity of the writ.

28 In the 12 months from 31 July 2009 to 30 July 2010, Mr Slaveski was involved in the First Proceeding. As noted, for significant periods of time he was in court dealing with this litigation. In that period, Mr Slaveski and then subsequently his litigation guardian, his wife, were able to conduct the litigation even under difficult circumstances.

29 Mr Slaveski's evidence does not explain why no attempt was made to serve the defendants. There are explanations as to difficulties Mr Slaveski was having, an assertion of being threatened by the police and having effectively to flee to New South Wales. However, there was never any attempt by Mr Slaveski to serve the defendants or contact solicitors such as the Victorian Government Solicitors Office, to see whether service would be accepted on behalf of some of the defendants.

30 Mr Slaveski had the ability to issue a summons seeking to extend the validity of the writ. He was able to appear before this Court on a number of occasions and prepare affidavit material in support of his application. Despite this, he has not provided an explanation or evidence of endeavouring to serve any of the defendants in the period from 31 July 2009 to 30 July 2010. There was no evidence from Mr Slaveski that the defendants were evading service.

31 Mr Slaveski submits that the main reason why he was not able to serve the writ on the defendants was due to the First Proceeding. When one looks at His Honour Kyrou J's decision in Slaveski v Victoria,[11] the dates of the hearing are noted. It is clear that the trial did not sit during the months of October and November 2009, January 2010 or July 2010. The proceeding only sat on one day in the month of June.

32 There is no explanation from Mr Slaveski as to why the writ could not have been served during those months.

33 In his affidavit sworn 16 August 2010, some two and a half months before His Honour Kyrou J delivered his decision in the First Proceeding, Mr Slaveski deposes that the proceeding had not finalised and "we have no idea when a judgment will be delivered".

34 While not clear, it seems that Mr Slaveski was awaiting the decision of the first proceeding before serving the writ. As noted, the general rule is that the mere wish of a party to await the outcome of another proceeding is not a good reason for extending the period of validity of a writ.[12]

35 It can be inferred, that Mr Slaveski has pursued a deliberate tactic of not serving the writ. As his Honour Hansen J noted in Protec's case, ordinarily a deliberate decision by a plaintiff not to serve the writ until collateral litigation has been disposed of or until some future development in that litigation occurs, will not be good reason for extending the time for service.[13]

36 Further, the ninth defendant relies on an affidavit of Mr Mark Monteith Dobbie sworn 27 April 2011. In his affidavit Mr Dobbie deposes to the fact that in the First Proceeding Vodaphone was subpoenaed at the request of the plaintiff to give evidence and produce documents in that proceeding. On 11 September 2009, Vodaphone produced a number of documents to the Court in accordance with the plaintiff's subpoena. On 5 March 2010, Patrick Tuohey, a solicitor from Middletons, appeared on behalf of Vodaphone before Justice Kyrou to give evidence in relation to Vodaphone's compliance with the subpoena.[14] There was no explanation by Mr Slaveski as to why he did not attempt to serve the documents on either a proper officer of the ninth defendant or the defendant's solicitors at the time. The affidavit also confirms that Mr Slaveski was aware of the address for service in relation to the ninth defendant. Despite these opportunities, Mr Slaveski did not attempt to serve the writ on the ninth defendant. Mr Slaveski was also aware that the VGSO acted for the State of Victoria and members of the Police Force in the First Proceeding. Again there was no attempt to serve the writ on the VGSO. On the one hand, Mr Slaveski relies on the pressure of litigation in the First Proceeding as the main reason why he did not attempt to serve the writ from July 2009 to July 2010. Yet he and/or his litigation guardian were able to issue subpoenas on at least two of the defendants to this claim in the First Proceeding.

37 In addition to any good reason demonstrated by Mr Slaveski for the delay, the Court must also consider all circumstances that are relevant to the exercise of the discretion.[15] As noted previously, merits of the plaintiff's claim are not relevant considerations. However, any prejudice suffered by the defendants should the application be granted, and the expiry of any limitation period will always be matters relevant to the Court's exercise of discretion.[16]

38 Consideration of the expiry of any limitation period while relevant is not of itself a good reason for the exercise of the discretion nor should it be a reason to conclusively decide the issue against the exercise of the discretion.[17]

39 Consideration of the expiry of any limitation period is, if nothing else, evidence of prejudice to the defendants.[18] In this case, Mr Slaveski's claim arises out of incidents from September 2000, to 2008.[19]

40 There is the real possibility some of the claims made by Mr Slaveski against the defendants are statute barred. Mr Slaveski alleges personal injury compromising various mental injuries. The limitation period for actions of personal injury, which includes impairment of a person's mental condition is three years.[20] If the validity of the writ is extended, prima facie some of the defendants will lose the ability to rely on a limitations defence for injuries occurring after 31 July 2006.

41 The delay between the accrual of the cause of action and the service of the writ gives rise to an inference of general prejudice to the defendants.[21]

42 For the reasons I have given, I conclude that Mr Slaveski has not shown that there is good reason for extending the period of validity of the writ and accordingly dismiss his application.

(as per the proposed Statement of Claim dated 8 April 2011)

GANDEL GROUP PTY LTD and COLONIAL FIRST STATE RETAIL TRUST PROPERTY PTY LTD

[1] Affidavit of Ljupco Slaveski sworn 16 August 2010 at [2]; affidavit of Snezana Slaveska sworn 30 July 2010 at [1].

[2] Affidavit of Ljupco Slaveski sworn 16 August 2010 at [5] and [6]; affidavit of Senzana Slaveska at [6].

[3] Affidavit of Ljupco Slaveski sworn 16 August 2010 at [8].

[4] Slaveski v Victoria [2010] VSC 441

[5] Ramsay v Madgwicks [1989] VicRp 1; [1989] VR 1 at p. 4; C and M Brick (Melbourne) Pty Ltd v Boral Besser Masonry Ltd [1998] VSC 186 at [15].

[7] Ramsay and anor v Madgwicks (a firm) [1989] VicRp 1; [1989] VR 1 at p. 6.

[8] Protec Pacific Pty Ltd v Steuter Industriewerke GmbH [2007] VSC 93.

[10] Protec Pacific Pty Ltd v Steuler Industriewerke GmbH [2007] VSC 93.

[12] Savcor Pty Ltd v Cathodic Protection International APS [2005] VSCA 213; (2005) 12 VR 639 at [42].

[13] Protec Pacific Pty Ltd v Steuler Industriewerke GmbH [2007] VSC 93 at [37].

[14] Affidavit of Mark Monteith Dobbie sworn 27 April 2011 at [6] - [9].

[15] Soper v Matsukawa [1982] VicRp 96; [1982] VR 948 at p. 945.

[17] Soper v Matsukawa [1982] 948 at p. 952 per Young CJ.

[18] Ramsay v Madgwicks [1989] VicRp 1; [1989] VR 1.

[19] Plaintiff's statement of claim dated 8 April 2011, paragraphs 32 - 39; threatening and prank phone calls from 2005 to 2009; episodes from 20 July 2006 to 14 August 2006, paragraphs 87 - 92.

[20] Section 3 and 5(1AA) of the Limitations of Actions Act 1958 (Vic).

[21] Soper v Matsukawa [1982] 948 at p. 952 per Young CJ.

Part IIA of Limitations of Actions Act 1958(Vic)