Plaintiff v Defendant

2 The application is supported by affidavits of Adrian Theodore Hoel, sworn 27 May 2013, 31 May 2013 and 4 June 2013 and the exhibits thereto. The defendant, Mr Ljupco Slaveski, appeared in person to oppose the application.

3 Mr Slaveski relied on his affidavit, sworn on 11 June 2013, and the exhibits thereto.

4 The subpoenas are addressed variously to judicial officers of this Court, Attorney-General Mr Robert Clark, the Chief Magistrate, persons who works within the Supreme Court, a Crown prosecutor, seven police officers and three legal practitioners. With the exception of the subpoena addressed to the Attorney-General, the subpoenas require the attendance of the named party and the production of documents specified in the Schedule. In the case of the subpoena directed to the Attorney-General, no documents are specified in the Schedule.

5 The application to set aside the subpoenas is made pursuant to Order 42.04(1) of the Supreme Court (General Civil Procedure) Rules 2005 (Vic) which relevantly provides that the Court may, of its own motion or on the application of a party to a proceeding, set aside a subpoena in whole or in part. The Court also has power to intervene to set aside a subpoena to prevent an abuse of process as part of the Court's inherent jurisdiction.[1]

6 A subpoena may be set aside if the subpoena process has not been used for the purpose of the proceeding or for the purpose of obtaining evidence relevant to the proceeding or if the subpoena process is being used for an impermissible purpose (such as a fishing expedition).[2]

7 Compliance with a subpoena to produce documents may be regarded as oppressive if the subpoena requires the addressee to make fine judgments regarding the relevance of documents or the subpoena does not specify the documents with sufficient clarity or reasonable particularity.[3]

8 The party who requests the issue of a subpoena bears the onus of establishing that documents the subject of the subpoena are sufficiently relevant to the proceeding to justify their production.[4]

9 In order to assess the relevance of any evidence or documents which might be given in response to the subpoenas issued at Mr Slaveski's request, it is necessary to briefly examine the nature and scope of the underlying proceeding.

10 In this proceeding, the Attorney-General has applied to the Court pursuant to s 21 of the Supreme Court Act 1986 (Vic) for:

(a) an order that Mr Slaveski be declared a vexatious litigant; and

(b) an order that Mr Slaveski must not, without leave of the Court, continue or commence any legal proceedings in certain courts and tribunals.

11 In Attorney-General for the State of Victoria v Gargan,[5] Pagone J stated:

To make an order that Mr Gargan is a vexatious litigant, the Court must be satisfied that he has:

(a) habitually; and

(b) persistently; and

(c) without any reasonable ground,

instituted vexatious legal proceedings (whether civil or criminal) in the Court, an inferior court or a tribunal against the same person or different persons. An order declaring a person to be a vexatious litigant is not be made lightly because its effect is to deprive a person of access to the courts without first seeking leave.

In Kay v Attorney-General (Vic)[6] the trial judge in an application to have a person declared a vexatious litigant was said to have conducted the hearing of the application with "exemplary care and meticulous fairness" extending "considerable generosity and latitude to the applicant".[7] Ormiston JA went on to say, however, that it "was necessary to re-examine the circumstances of each proceeding upon which the Attorney-General might seek to rely to support the making of an order".[8] In Attorney-General (Vic) v Horvath,[9] Ashley J (as his Honour then was) said, in relation to the task required by s 21(2) of the Supreme Court Act 1986 (Vic):

It is one thing to know what the word "vexatious" means. It is another thing to apply s 21(2) to the circumstances of a particular case. In the latter task the following matters are, according to the authorities, relevant first where an order has been made dismissing an action as frivolous or vexatious, or striking a pleading out, it is not for a court considering a s 21 application to go behind the order and go into the merits of the argument as a court of appeal would do. Second findings which are required do not depend on viva voce evidence or credibility of witnesses. The critical evidence is to be found in court files - documents, judgments, orders and reasons.

For that reason, any hearsay material contained in an affidavit in support of any application, even though objectionable, should be treated simply as a distraction, and ignored. Third the question is not whether the manner in which a proceeding is conducted is vexatious; it is whether, having regard to its nature and substance, it should be so characterised. Fourth, and this is a more general proposition with respect to s 21, in determining whether the Attorney-General has made out a case, the court is not concerned with a minute individual examination of each proceeding. It must consider the overall impression created by the number of proceedings, their general character and their results.[10]

It is, therefore, to Mr Gargan's proceedings that the Court must look in any application under s 21 to determine whether the proceedings brought by him are, rather than whether he is, vexatious. [11]

12 Counsel for the Attorney-General relied on these authorities and submitted that, having regard to the array of persons to whom the subpoenas are addressed, the descriptions of the documents the subject of the subpoenas, and the nature of the evidence in light of what was said in Gargan, that Mr Slaveski has not shown how any evidence or documents the subject of the subpoenas could have any relevance to the issues in the present proceeding. Further, Counsel submitted that the critical evidence in this proceeding is to be found in court files and, in particular, judgments, orders and reasons.

13 Further, the applicant submitted that, in any event, the terms of the subpoenas are unreasonably wide and vague, failing to specify with reasonable particularity the documents that are required to be produced. Given the breadth of the terms of the subpoenas, it was submitted that the Court should find that the subpoenas constitute an impermissible "fishing expedition".

14 It was also submitted that, in the absence of sufficient particularity of the description of the documents, compliance with any obligation to produce would be oppressive.

15 Finally, it was submitted that the lack of any apparent connection to the issues in the litigation should lead to the conclusion that the subpoenas have been filed for a purpose other than for the purpose of this proceeding; that Mr Slaveski has failed to establish that any legitimate forensic purpose would be served by compliance with the subpoenas, and that in the circumstances, the Court should be satisfied that the subpoenas amount to an abuse of the process of the Court. Accordingly, it was submitted that the Court should order that each of the 20 subpoenas issued at the request of Mr Slaveski be wholly set aside.

16 Mr Slaveski relied on his affidavit sworn on 11 June 2013 in opposition to the application. This affidavit contains material in support of an application to vacate the trial date from 20 June 2013 and an application to adjourn the hearing of the summons in this application from 4 June 2013 to 11 June 2013, including evidence about Mr Slaveski's medical treatment, booking tickets through a travel agency and payment of a deposit on an airfare. It also contains a draft counterclaim against the Attorney-General seeking damages for personal injury and nervous shock arising from an alleged threat made to Mr Slaveski in February 2012 and evidence about a subpoena Mr Slaveski intends to issue if he could ascertain the name of a male person he identified in an exhibit to his affidavit. The affidavit also contains statements alleging that there were problems between Mr Slaveski and the Epping/Mill Park police over a 15-year period and that there was an episode involving an alleged employee of the Supreme Court on 13 February 2012 and a policeman on 6 March 2013. Mr Slaveski deposes in his affidavit that he intended to invite

the judges and the Attorney-General Robert Clark to answer the question, only one question: (1) Do we sue each other with these people? or (2) Do we kill each other on the streets.

He also asserts in his affidavit that there is a "lot of conspiracy" and that a "lot of judges are biased" against him and that the Victoria Police "does not like" him.

17 When asked to explain the relevance of the subpoenas to the proceeding, Mr Slaveski submitted that all of the people named in the subpoenas are linked and are part of a conspiracy against him.

18 Although this is an interlocutory application, I feel constrained to observe that the extravagant allegations made by Mr Slaveski are scandalous in nature and form and appear, at least on the material before me, to lack a prima facie foundation. I found Mr Slaveski's argument at times difficult to understand, but it seems to me that he is endeavouring to use the subpoena process to found a claim for a perceived conspiracy and to accumulate evidence to support grievances against Court officers, police officers or legal practitioners in relation to matters which are alleged to have occurred in February 2012 and March 2013.

19 I am not satisfied that these matters would add to the relevant evidence to be adduced in opposition to the relief claimed by the Attorney-General in this proceeding.

20 As Ashley J said in Horvath, the findings which are required do not depend on viva voce evidence or the credibility of witnesses. The critical material which will be relied on will principally be judgments, orders and reasons. In particular, in my view there is no utility or relevance in the question or questions formulated in Mr Slaveski's affidavit, which Mr Slaveski deposes, that he intends to ask of the judges and the Attorney-General if they are required to attend to give evidence.

21 Generally, I accept the submission of the applicant that Mr Slaveski has not shown how oral evidence which could be adduced from the subpoenaed persons is relevant to the issues in the present proceeding.

22 In the circumstances, in my opinion, to require the attendance at Court of the subpoenaed persons would be oppressive.

23 With the exception of the subpoena directed to the Attorney-General, the subpoenas seek the production of documents described in schedules to the subpoenas. I have examined the schedules to each subpoena. For convenience, I shall adopt the sub-paragraph references to the subpoenas which are set out in paragraph 3 (a) - (t) of the affidavit of Adrian Theodore Hoel, sworn 27 May 2013. I consider that:

• sub-paragraph (a) is too wide, vague, incomprehensible, contains scandalous allegations and, to the extent that it is comprehensible, requires production of documents not shown to be relevant to the proceeding;
• sub-paragraphs (b), (d), (f), (m) and (n) are too wide, vague, incomprehensible and would require the recipient to speculate on the documents required to be produced;
• sub-paragraphs (c), (e), (h) and (t) are too wide, vague, incomprehensible and contain scandalous allegations;
• sub-paragraph (g) is vague and would require the recipient to speculate on the subject matter of the documents required to be produced.
• sub-paragraph (j) is too wide, vague, mainly incomprehensible, and to the extent that it is comprehensible, requires production of documents not shown to be relevant to the proceeding;
• sub-paragraph (k) is too wide, vague, requires production of documents not shown to be relevant to the proceeding; and
• sub-paragraphs (k) (l), (o), (p), (q), (r) and (s) are too wide and vague, contain unsubstantiated allegations and require production of documents relating to alleged events not shown to be relevant to the proceedings.

24 Sub-paragraph (i) does not specify documents in the Schedule.

25 In my opinion, and for the reasons I have outlined, it would be oppressive to require compliance with these subpoenas. Considering the matter overall, I am not satisfied that the subpoena process has been used for the purposes of obtaining evidence which will be relevant to the proceeding.

26 In the circumstances, I propose to order that each subpoena be set aside.

27 A matter which arose during the course of the hearing of the application was a request by the defendant, Mr Slaveski, to have the trial date of 20 June 2013 vacated to a date after 18 August 2013. Insufficient notice of this request was given to the plaintiff. No formal application was made before the Court to vacate the trial date. The exhibited material upon which Mr Slaveski sought to rely was not provided to the plaintiff until immediately prior to the hearing at Court on 11 June 2013. Counsel for the plaintiff informed the Court that the plaintiff was not in a position to deal with the application there and then.

1. That the subpoenas issued by the Court in this proceeding on 24 May 2013 at the request of the defendant (described more particularly in paragraph (3) of the affidavit of Adrian Theodore Hoel, sworn 27 May 2013), be wholly set aside.

1. The defendant pay the plaintiff's costs of and incidental to the plaintiff's summons filed 28 May 2013 including the plaintiff's costs of and incidental to the hearing on 4 June 2013.

[1] Botany Bay Instrumentation v Stewart (1984) 3 NSWLR 98, 100-101.

[2] Commissioner for Railways v Small [1938] NSWStRp 29; (1938) 38 SR (NSW) 564, 575; see also ICAP Pty Ltd v Moebes [2009] NSWSC 306, [25] - [33].

[3] Australian Competition and Consumer Commission v Shell Co of Aust Ltd [1999] FCA 212; (1999) 161 ALR 686, 696; Finnie v Dalglish [1982] 1 NSWLR 400, 407; National Employers' Mutual General Insurance Association Ltd v Waind [1978] 1 NSWLR 372, 382; Commissioner for Railways v Small [1938] NSWStRp 29; (1938) 38 SR (NSW) 564, 574.

[4] Seven Network Limited v News Ltd (No 11) (2006) FCA 174 [6]-[7]; Cheung Kong Infrastructure Holdings Ltd v Blue Scope Steel Ltd [2010] FCA 739 [55].

[5] [2013] VSC 222 ('Gargan').

[6] [2000] VSCA 176; (2000) 2 VR 436.

[8] Ibid, see also A-G (Vic) v Weston [2004] VSC 314, [16] (Whelan J) and A-G (Vic) v Knight [2004] VSC 407, [5] (Smith J).

[9] [2001] VSC 269 ('Hovarth').

[10] Ibid [28] (citations omitted); see also A-G (Vic) v Shaw [2007] VSC 148, [5] (Hansen J) and A-G (Vic) v Moran [2008] VSC 159, [27] (Curtain J).

[11] Gargan [2013] VSC 222 [6]-[7]. See also Attorney-General for the State of Victoria v Shaw [2007] VSC 148 [5] and Attorney-General for the State of Victoria v Moran [2008] VSC 159 [27].