Plaintiff v Defendants

1 This judgment should be read in conjunction with my judgment dated 24 September 2009,[1] which set out in detail various instances of inappropriate behaviour by the plaintiff during the first 22 days of the trial. At the Court's request, the plaintiff agreed to undergo an independent psychiatric assessment for the purpose of assisting the Court in deciding how to manage the further conduct of the proceeding.

2 The Court has received reports from an independent forensic psychiatrist, Dr Danny Sullivan, and a consultant psychiatrist, Dr R W Farnbach. Dr Sullivan was selected by Public Interest Law Clearing House ('PILCH'), which appeared through counsel on 22 September 2009 as a friend of the court, and was engaged by PILCH at the first defendant's expense. Dr Farnbach, who has previously treated Mr Slaveski, was engaged by Mr Slaveski.

3 In their reports, the psychiatrists agreed that Mr Slaveski suffers from psychiatric illnesses, although they did not entirely agree on the nature of those illnesses. They each expressed the opinion that, as a result of his illnesses, Mr Slaveski is incapable of managing his affairs in relation to this proceeding. All parties accepted this opinion.

4 Mr Slaveski applied for an order that his wife, Snezana Slaveska, be appointed his litigation guardian. Mrs Slaveska consented to the appointment and the defendants did not oppose the appointment.

5 For the reasons set out below, I have decided to appoint Mrs Slaveska as Mr Slaveski's litigation guardian pursuant to r 15.03(3) of the Supreme Court (General Civil Procedure) Rules 2005 (Vic) ('Rules') and to dispense with the requirement in r 15.02(3) that she be legally represented.

6 Dr Sullivan and Dr Farnbach were both provided with a list of questions, together with, among other documents, my judgment dated 24 September 2009.

The nature and effect of Mr Slaveski's psychiatric illnesses

7 The first two questions that the psychiatrists were asked were:

(a) does Mr Slaveski present with any psychiatric illnesses; and

(b) if so, what are the nature and effect of the illnesses?

[35] Mr Slaveski experiences clinically significant anxiety symptoms. His symptoms are best described as generalised anxiety disorder and are complicated by panic disorder. Due to his use of alprazolam over some time it is unclear how the withdrawal effects of this short-acting and powerful benzodiazepine are related to his panic, and it is possible that some panic symptoms relate to fluctuations of benzodiazepine levels. When anxious, his thinking may become disorganised and disjointed, and his behaviour erratic and possibly agitated or aggressive due to perceived threat.

[36] It is not clear that there are clinically significant depressive symptoms. There is no evidence of any significant substance abuse, although he is dependent on medically-prescribed benzodiazepines. Mr Slaveski is an intelligent man and there is no indication of cognitive impairment, although for completeness I note that benzodiazepines impair registration and recall of memories and may be associated with reversible cognitive impairment. Although he exhibits paranoid personality traits, these appear to have developed over the course of protracted litigations and were not clearly evident beforehand. Consequently I doubt that he could be diagnosed with an overt personality disorder. His expressions of anger in court would appear to be related to profound anxiety rather than to an aggressive disposition.

[37] Mr Slaveski appears to suffer from a delusional disorder. His preoccupation with police harassment is extreme and has consumed his life. This may well be grounded in reality, but some of Mr Slaveski's inferences are likely delusional in nature.

[38] The concern that his beliefs are delusional relates to his absolute conviction in his opinion and Mr Slaveski's inability to consider alternative explanations. At interview with me he was so fixed in his opinions that I did not believe that any new evidence or contrary information would have been accepted without sustained and heated debate.

[39] While I make no claims as to the veracity of information which is before the court, his unshakeable belief in his interpretation of events appeared to be in the delusional realm. I should reiterate that this is not a judgment about the truthfulness of Mr Slaveski's beliefs, but rather reflects his thinking style. It may well be that some of his claims are true. However he takes seemingly unrelated events as self-referential, the interpretation he chooses is consistently one which supports Mr Slaveski's beliefs that he is subject to ongoing police persecution, and his conviction that this is correct is unshakeable.[2]

9 Dr Farnbach answered the first two questions as follows:

At first sight, it may appear that Mr Slaveski, because of the behaviour recorded, must have a severe personality disorder. There are people who have narcissistic and/or antisocial personality disorders who behave aggressively and with lack of self-control when they are frustrated. This is called 'tantrums'.

I do not believe that this is the case with Mr Slaveski. His problem is that he has an acquired condition. He has very severe [Post Traumatic Stress Disorder], with depression and panic disorder. When anything happens to remind him of his traumas, he is very prone to having instant flashbacks, over which he has no control, and which cause him intense distress, with fear and anger, which could have the appearance of a paranoid outburst. He would control himself if he could, as he has no wish to cause damage to his own case, but he cannot.

...

Mr Slaveski is sane, in the sense that he is not psychotic, but he is very seriously disturbed, with an extremely severe anxiety disorder, namely [Post Traumatic Stress Disorder], severe panic disorder and severe depression.

Mr Slaveski is not capable of managing his affairs in relation to this proceeding

10 The third question that the psychiatrists were asked was whether Mr Slaveski's psychiatric illnesses make him incapable of managing his affairs in relation to this proceeding, cause him to be a risk to the safety of himself or others, or prevent him from abiding by the trial judge's directions or controlling his behaviour in court.

11 Dr Sullivan answered the third question as follows:

[42] In my opinion, Mr Slaveski lacks the capacity to manage his affairs in relation to this proceeding. I believe that, due to his psychiatric conditions, Mr Slaveski is not able to conduct his own case effectively and in line with Court rules and processes.

[43] The grounds for my opinion that Mr Slaveski lacks capacity to manage this trial relate to both his anxiety disorder and his incapacity to consider the consequences of his representations. The latter relates to his firm and apparently unshakeable conviction that he has been subject to compensable harassment. As I have stated, regardless of whether this has occurred or not, Mr Slaveski's convictions about his harassment are so fixed, not amenable to reason, and inclusive of numerous seemingly unrelated events, that they could be regarded as delusional. In my opinion this compromises his ability to conduct a trial to his own advantage, in particular to consider the strengths and weaknesses of his case or make rational decisions about the progress and future of the litigation.

[44] Mr Slaveski is not able to regard matters so dispassionately that he can accept findings of fact by the trial judge, and he is prone to interpreting any decision against him as evidence of conspiracy or procedural unfairness. Consequently the action has been delayed by eddies and skirmishes about peripheral issues, and by Mr Slaveski's disordered behaviour, involving verbal threats to others, inappropriate statements and a range of difficulties in managing the vicissitudes of a contested trial.

[45] Mr Slaveski's anxiety is so clinically apparent that at times he is unable to remain in the courtroom. Moreover, his anxiety has led to a range of unorthodox and challenging behaviours in Court which threaten to derail proceedings and result in a stay or in contempt proceedings against Mr Slaveski. In part that is because Mr Slaveski's conviction that his position is right prevents him from being able to accept any decision contrary to this. It is clear that when challenged or confronted, or when he believes that he has been treated unfairly, Mr Slaveski becomes so anxious that he is unable to think clearly or to his own advantage, and his behaviour becomes erratic and potentially abusive or threatening. At these times I do not believe that he would be capable of abiding by the directions of the trial judge or exhibiting sufficient self-control over his behaviour to remain in the courtroom.

[46] This disadvantages Mr Slaveski. Not only does his behaviour threaten the continuation of proceedings, but in my opinion it is likely to compromise the possibility of Mr Slaveski advocating effectively for himself. In addition I doubt that he could manage the stress of cross-examination without profound decompensation and the risk of deterioration in mental state. As noted, this has led to him threatening to take an overdose in Court, which is an indication of his inability to withstand the ongoing stress of these proceedings. He has uttered verbally aggressive statements and it is possible that he might be moved to violence if under sufficient stress.

[47] I believe that Mr Slaveski is intellectually aware of potential consequences including costs orders against him, but is so convinced of the righteousness of his action that he does not regard this as likely. Indeed he has already spoken at times of potential future legal battles such as appeals and representations to the United Nations. These views would appear at best ill-considered and at worst impossible. I do not believe that Mr Slaveski is able to weigh the risks and benefits of proceeding in litigation or, due to his conviction in his position, to accept any compromise position which might reduce his potential liability for costs.

12 Dr Farnbach was of the opinion that Mr Slaveski's psychiatric illnesses make him incapable of managing his affairs in relation to this proceeding and prevent him from abiding by the trial judge's directions and controlling his behaviour in court. Dr Farnbach did not believe that Mr Slaveski posed a risk to the safety of others, but acknowledged the possibility that he could pose a risk to his own safety.

13 The psychiatrists were asked whether their answer to the third question would change given various scenarios, including the appointment of a litigation guardian and, in particular, the appointment of Mrs Slaveska as litigation guardian.

[49] If a lawyer (without a litigation guardian) were to be appointed, I do not believe that Mr Slaveski would be able to instruct this legal representative. I think that he would be unlikely to accept advice about the conduct of proceedings such as settling or making strategic compromises. I do not believe that he could accept legal advice to conduct the trial in any fashion which differed from the way he would conduct it himself.

[50] A litigation guardian would in my understanding have increased discretion to conduct the proceedings in Mr Slaveski's best interests. If the option exists for a litigation guardian and a lawyer to be appointed this may enable both representation of Mr Slaveski's opinions in conjunction with legal advice about how best to conduct proceedings.

[51] Any of these courses of action would permit the Court to hear the proceedings in a more timely fashion and without the same risks to Mr Slaveski and to others. If Mr Slaveski was unable to abide by the directions of the trial judge then he could be dealt with using the rules and processes of the Court, without necessarily compromising his litigation.

[52] The issue of Mrs Slaveska as litigation guardian is a complex one. I have not formally been asked to assess Mr Slaveski's wife. She impresses as supportive, intelligent and is likely to possess a modicum of legal expertise both experientially and through academic study. I would however note that she and Mr Slaveski are enmeshed in a long-term relationship and it would be difficult for her to challenge his opinion, due to a combination of their marriage and Mr Slaveski's personality and strong conviction.

[53] It is not clear that Mrs Slaveska would be able to act as litigation guardian without coming under marked marital influence, which might compromise her carriage of proceedings. I cannot see how Mr Slaveski would easily absent himself from proceedings, or would acquiesce to his wife's representation without his own participation in the process. Should the Court determine that [Mrs] Slaveska is an appropriate litigation guardian then before proceeding it may be helpful to delineate the role and its responsibilities clearly to her and to Mr Slaveski.

15 Dr Farnbach expressed the view that it is not in Mr Slaveski's interests to attempt to continue to run his own case, that he needs a litigation guardian and that Mrs Slaveska is able and willing to act in that role. He also expressed the view that, if Mrs Slaveska was appointed as litigation guardian, Mr Slaveski would not be a risk to the safety of himself or others and would be able to abide by the trial judge's directions and control his behaviour in court. He did not give reasons for these views.

Control of the effects of Mr Slaveski's illnesses through medication

16 Both psychiatrists expressed the opinion that Mr Slaveski's mental illnesses could not be sufficiently controlled through medication to enable him to manage his affairs in relation to this proceeding.

Options considered in light of the psychiatrists' reports

17 At the hearing on 4 December 2009, I asked the parties whether they accepted the psychiatrists' opinion that Mr Slaveski's mental illnesses make him incapable of managing his affairs in relation to this proceeding. All of the parties informed me that they accepted that opinion.

18 Mr Slaveski applied for an order that Mrs Slaveska be appointed his litigation guardian. Mr Ilhe, who appeared for the firstnamed defendant, initially submitted that such an order would be premature. He said that, as Dr Sullivan had raised some reservations about Mrs Slaveska being appointed as litigation guardian, the first defendant wanted Dr Sullivan to attend court so that he could be asked questions about Mrs Slaveska's suitability as a litigation guardian. Mr Gipp, who appeared for the second to twenty-first[3] defendants, adopted Mr Ihle's submissions. Mr Slaveski informed the Court that, if Dr Sullivan was to give oral evidence, Dr Farnbach would be required to do so as well.

19 Mr Ihle also informed the Court that, depending on the oral evidence of the psychiatrists, his client might apply for an order under s 66 of the Guardianship and Administration Act 1986 (Vic) referring to the Victorian Civil and Administrative Tribunal ('VCAT') the issue of whether a guardian should be appointed in respect of Mr Slaveski.

20 Neither Mr Ihle nor Mr Gipp contended that it was appropriate for the Court to permanently stay the proceeding. Mr Ihle raised the possibility of the proceeding being stayed temporarily to give Mr Slaveski a further opportunity to obtain legal representation or to find other persons who may be prepared to be appointed as his litigation guardian. He conceded, however, that these options were purely hypothetical.

21 On 4 December 2009, I adjourned the proceeding to enable arrangements to be made for the two psychiatrists to give oral evidence. Later that day, however, my associate was advised that the defendants would not oppose Mr Slaveski's application for Mrs Slaveska to be appointed as his litigation guardian and that they no longer wished to pursue their request that Dr Sullivan give oral evidence.

22 The Court has power under Order 15 of the Rules 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.

15.01 Definitions

In this Order -

handicapped person means a person who is incapable by reason of injury, disease, senility, illness or physical or mental infirmity of managing his or her affairs in relation to the proceeding;

person under disability means minor or handicapped person.

15.02 Litigation guardian of person under disability

(1) Except where otherwise provided by or under any Act, a person under disability shall commence or defend a proceeding by his or her litigation guardian.

(2) Except where otherwise provided by these Rules, anything in a proceeding that is required or permitted by the Rules to be done by a party shall or may, if the party is a person under disability, be done by his or her litigation guardian.

(3) A litigation guardian of a person under disability shall act by a solicitor.

15.03 Appointment of litigation guardian

(1) A person may be a litigation guardian of a person under disability if -

(a) that person is not himself or herself a person under disability; and

(b) he or she has no interest in the proceeding adverse to that of the person under disability.

...

(3) Where after a proceeding is commenced a party to the proceeding becomes a handicapped person, the Court shall appoint a litigation guardian of that party.

(4) Where the interests of a party who is a person under disability so require, the Court may -

(a) appoint or remove a litigation guardian; or

(b) substitute another person as litigation guardian.

(5) Where a party has a litigation guardian in a proceeding, no other person shall act as litigation guardian, unless the Court otherwise orders.

(6) Except where a litigation guardian has been appointed by the Court, the name of a person shall not be used in a proceeding as litigation guardian of a person under disability unless there is first filed in the office of the Prothonotary -

(a) the written consent of the person to be the litigation guardian; and

(b) a certificate by the solicitor for the person under disability certifying that the solicitor knows or believes that -

(i) the person to whom the certificate relates is a minor or is a handicapped person, giving the grounds of the solicitor's knowledge or belief; and

(ii) the litigation guardian of the person under disability has signed the said written consent and has no interest in the proceeding adverse to that person.

...

15.08 Compromise of claim by a person under disability

(1) Where in a proceeding a claim is made by or on behalf of or against a person under disability, no compromise, payment of money or acceptance of an offer of compromise under Order 26, whenever entered into or made, shall so far as it relates to that claim be valid without the approval of the Court. ...

Principles regarding appointment of a litigation guardian

24 Where the issue of a party's capacity arises after the commencement of proceedings, and the Court is satisfied that the person lacks capacity, r 15.03(3) requires the Court to appoint a litigation guardian. The Court can appoint the litigation guardian of its own motion. A failure to appoint a litigation guardian where r 15.03(3) applies is an irregularity and does not nullify the proceeding.[4]

25 There is a presumption that a person of full age is capable of managing his or her own affairs,[5] which must include the management of litigation to which he or she is a party. The person who alleges the contrary bears the onus.[6]

26 There is no universal test for determining whether a person is capable of managing his or her affairs.[7] Lack of capacity is usually denoted by a person's inability to understand the nature of an event or transaction when it is explained.[8] In relation to litigation in which a person is a party, the person must be able to understand the nature of the litigation, its purpose and its possible outcomes, including the risks in costs.[9]

27 The words 'in relation to the proceeding' in r 15.01 are important because they focus on the person's ability to bring or defend a particular proceeding rather than on whether the person is able to manage his or her affairs generally or in relation to some other transaction.[10] As Chadwick LJ observed in Masterman-Lister v Brutton & Co: 'The test is issue specific; and, when applied to different issues, it may yield different answers.'[11] Accordingly, the fact that a person has been involuntarily admitted to a psychiatric facility under mental health legislation is not conclusive proof of incapacity under r 15.01, but it may be relevant to an assessment of such incapacity.[12]

28 The question of incapacity in relation to litigation must be examined against the facts and subject matter of the particular litigation, the number and complexity of the issues involved and the identity, number and interests of the other parties, particularly opposing parties.[13] A person can have the requisite capacity for one proceeding and lack it for another.

29 Where a person is a party to a proceeding and is legally represented, he or she will be incapable of managing his or her affairs in relation to the proceeding if he or she does not have the mental capacity to understand the nature of the acts or transactions in respect of which he or she needs to give instructions to the lawyer.[14]

30 In Owners of Strata Plan No 23007 v Cross,[15] Edmonds J identified the following factors as relevant to determining whether one of the parties in that case (who was able to be legally represented) was a 'person under disability':

(a) whether the person had the ability to understand that he or she required advice in respect of the relevant legal proceeding;

(b) whether the person had the ability to communicate this requirement to someone who could arrange an appointment with an appropriate advisor or, alternatively, whether he or she could arrange such an appointment of his or her own accord;

(c) whether the person had the ability to instruct the advisor with sufficient clarity to enable him or her to understand the situation and to advise the person appropriately; and

(d) whether the person had the ability to make decisions and give instructions based upon, or otherwise give effect to, such advice as might be received.[16]

31 Where a person is a self-represented party to a proceeding, the level of mental capacity required to be a 'capable' litigant will be greater than that required to instruct a lawyer because a litigant in person has to manage court proceedings in an unfamiliar and stressful situation.[17]

32 In my opinion, where a plaintiff is self-represented, the following issues are potentially relevant in determining whether he or she is a person under disability for the purposes of r 15.01 of the Rules:

(a) Does the plaintiff understand the factual framework for his or her claims and the type of evidence required to succeed in his or her claims?

(b) Is the plaintiff capable of understanding what is relevant to the proceeding and what is not relevant when these matters are explained to him or her?

(c) Is the plaintiff capable of assessing the impact of particular evidence on his or her case?

(d) Is the plaintiff able to understand the Court processes and the basic rules for conducting his or her case when these matters are explained to him or her?

(e) Is the plaintiff able to understand Court rulings made during the trial when they are explained to him or her?

(f) Assuming the plaintiff is able to understand Court processes, the basic rules of conducting his or her case and Court rulings, is he or she capable of complying with them and directions given by the judge?

(g) Does the plaintiff understand the roles of counsel for the defendant, witnesses and the judge and is he or she capable of respecting those roles and allowing the relevant individuals to discharge their duties without inappropriate interference or abuse?

(h) Is the plaintiff able to control his or her emotions and behave in a non-abusive and non-threatening manner when events do not go his or her way during the trial (such as when adverse rulings are made by the judge, questions are asked in cross-examination on sensitive issues or unfavourable answers are given by witnesses)?

(i) Does the plaintiff have an insight into the possible adverse consequences of his or her behaviour in court, including delay in the resolution of the claims, the defendant incurring additional costs that the plaintiff might have to pay if the claims are unsuccessful and the tying up of scarce judicial resources when these matters are explained to him or her?

(j) Does the plaintiff understand that he or she could possibly lose the case in whole or in part when this matter is explained to him or her?

(k) If the cumulative effect of the evidence is such that a lay person of reasonable intelligence and common sense would form the view that a particular claim will fail, would the plaintiff be capable of forming such a view?

(l) Is the plaintiff capable of assessing any settlement proposal on its merits, having regard to the state of the evidence, the parties' submissions and other developments in the proceeding as at the time the proposal is made?

(m) If the trial is long and complex, is there a risk that the stress and pressure of the litigation might harm the plaintiff's physical or mental health?

33 A self-represented person who is incapable of continuing to act as his or her own advocate is not necessarily incapable of managing his or her affairs in relation to the relevant proceeding, as that person may be capable of retaining legal representatives to continue to conduct the proceeding.[18]

34 Ordinarily, the Court will determine whether a party has the requisite capacity for the purposes of Order 15 after receiving medical evidence. However, where a party's incapacity is readily apparent from his or her behaviour inside the courtroom, the Court may be able to make the determination without the assistance of medical evidence.[19]

35 A decision on whether to appoint a litigation guardian is usually made after giving the party affected and the other parties to the proceeding an opportunity to be heard on the matter. However, the party affected will not need to be heard personally where it is incontrovertible that he or she is incapable of making any meaningful submissions on the matter.[20]

36 Once a litigation guardian is appointed, he or she stands in the shoes of the person under a disability and must act in the interests of that person. The litigation guardian has the conduct of the proceeding, including responsibility for the engagement of legal representatives and the giving of instructions about the calling of witnesses and the settlement of the proceeding.[21]

37 Where the litigation guardian is present at the hearing, the absence of the person under a disability does not necessarily constitute a breach of the rules of natural justice because, depending on the circumstances, that person's interests may be sufficiently protected by the presence of the litigation guardian.[22]

38 Rule 15.02(3) provides that a litigation guardian of a person under disability shall act by a solicitor. However, in my opinion, this requirement can be dispensed with pursuant to r 2.04 which provides that the Court 'may dispense with compliance with any of the requirements of [the] Rules'.[23]

39 Where an order for costs is made against a plaintiff who is a person under disability, the litigation guardian is personally liable for costs incurred from the date of his or her appointment.[24] Ordinarily, the litigation guardian has a right of indemnity against the plaintiff.[25] In appropriate cases, an order for costs can be made against the plaintiff and the litigation guardian jointly and severally.[26]

Appointment of Mrs Slaveska as litigation guardian

40 On the basis of the psychiatrists' opinion that Mr Slaveski is not capable of managing his affairs in relation to this litigation and the parties' acceptance of that opinion, I find that Mr Slaveski is a 'handicapped person' within the meaning of r 15.01 of the Rules in that he is incapable by reason of mental infirmity of managing his affairs in relation to this proceeding. Rule 15.01 provides that a handicapped person is a 'person under disability'.

41 As I have found that Mr Slaveski is a 'handicapped person', r 15.03(3) requires the Court to appoint a litigation guardian.

42 The only person who is willing to be appointed as Mr Slaveski's litigation guardian is Mrs Slaveska. Her appointment is acceptable to Mr Slaveski.

43 At the hearing on 22 September 2009, there was some discussion about Mrs Slaveska's suitability to be appointed litigation guardian. I informed Mrs Slaveska of the responsibilities of a litigation guardian and, in particular, of the litigation guardian's personal exposure to any costs order that may be made in favour of an opposing party. Mrs Slaveska said then - and she reiterated this on 4 December 2009 - that she understands the nature of the role and responsibilities of a litigation guardian, and wishes to be appointed.

44 I share the reservations of Dr Sullivan about appointing Mrs Slaveska as Mr Slaveski's litigation guardian that are set out at [14] above. The reality of the situation, however, is that no-one else is willing to be appointed litigation guardian. This means that if Mrs Slaveska is not appointed, the proceeding cannot continue and Mr Slaveski will be shut out of court by reason of his disability. This would be an unjust result and one that should be avoided if other less drastic options are available.

45 In the special circumstances of this case, I am prepared to appoint Mrs Slaveska as Mr Slaveski's litigation guardian. There is no evidence that she suffers any physical or mental infirmity. On the contrary, she has struck me as an intelligent individual, who is committed to her husband's case and who has intimate knowledge of that case. While there may be an issue as to whether she is capable of being sufficiently independent of Mr Slaveski in managing the proceeding on his behalf, any lack of independence is likely to be offset by the benefits arising from her familiarity with the case and the fact that Mr Slaveski trusts her.

46 Mrs Slaveska does not appear to have any interest in the proceeding which is adverse to that of Mr Slaveski. She will, however, be required to swear an affidavit containing a declaration to that effect.

47 Rule 15.02(3) provides that a litigation guardian must act by a solicitor. Mr and Mrs Slaveski have informed the Court that they cannot afford a lawyer and that no agency is prepared to provide to them legal representation free of charge. Their recent unsuccessful efforts in seeking legal representation are set out in Mrs Slaveska's affidavit of 22 September 2009. If I were to insist on compliance with r 15.02(3), the effect would be that Mrs Slaveska would not be appointed litigation guardian and the proceeding would not continue. As the defendants did not oppose the making of an order dispensing with compliance with r 15.02(3) pursuant to r 2.04, I will make such an order.

48 In dispensing with compliance with r 15.02(3), I am comforted by the fact that Mrs Slaveska has acted as Mr Slaveski's McKenzie friend[27] throughout the trial and, with my permission, has often made submissions on his behalf on various factual and legal issues. In performing this role, Mrs Slaveska behaved courteously and professionally. Mrs Slaveska has been able to draw upon knowledge gained in the legal studies component of the Arts degree that she is undertaking at La Trobe University.

49 In [44] and [47] above, I said that a failure to appoint Mrs Slaveska as Mr Slaveski's litigation guardian would have the practical effect of precluding the continuation of the proceeding. It should be noted that, if I were to refer to the VCAT the issue of whether a guardian should be appointed in respect of Mr Slaveski, the VCAT could appoint the Public Advocate as a limited guardian for the purposes of this proceeding, and the Public Advocate and his lawyers could conduct the proceeding. The option of a referral to VCAT is not an attractive one in the circumstances of this case. First, it would result in further delay. Second, it is unclear what the VCAT, or any guardian appointed by the VCAT, might do. Based on Dr Sullivan's report, it appears likely that Mr Slaveski would not trust any guardian other than his wife and that any other person who is appointed as his guardian, or any lawyer that is appointed to assist the guardian, would find it difficult - if not impossible - to work with Mr Slaveski.

50 I have considered the possibility of following the course adopted by Nettle J (as his Honour then was) in Skrijel v Mengler,[28] namely permitting Mrs Slaveska to appear as an unqualified lay advocate for Mr Slaveski rather than appointing her as litigation guardian. This option was available in Skrijel, however, because his Honour found that Order 15 did not apply. In the present case, as I have found that Order 15 does apply, the option is not available.

51 The appointment of Mrs Slaveska as Mr Slaveski's litigation guardian will not be irrevocable. Rule 15.03(4) provides that the Court may remove a litigation guardian where the interests of the person under disability so require. In my opinion, this is not an exhaustive statement of the circumstances in which a litigation guardian may be removed. The Court has inherent jurisdiction to remove a litigation guardian where that course is required by the interests of justice, including where the litigation guardian's conduct prevents the Court from ensuring a fair trial for all parties. If Mrs Slaveska's conduct as litigation guardian is such as to prejudice Mr Slaveski's interests or to prevent this Court from ensuring a fair trial for all parties, then the Court could consider her removal of its own motion or on the application of Mr Slaveski or the defendants.

52 Before Mrs Slaveska's appointment as litigation guardian takes effect, she will be required to file and serve an affidavit confirming that she has received independent legal advice about her role, responsibilities and potential liabilities as a litigation guardian. As I have mentioned in [46] above, the affidavit will also contain a declaration that she does not have any interest in the proceeding which is adverse to that of Mr Slaveski. As I have decided to dispense with compliance with r 15.02(3), I will also dispense with compliance with r 15.03(6)(b).

Concluding comments - special circumstances of this case

53 What I have said already deals with the issues before me. It is important, however, for me to emphasise that the circumstances of this case are unique. Caution is therefore required when considering its possible application to any other case.

54 The unique features of this proceeding include the following:

(a) Its length. Prior to the adjournment on 15 September 2009, the hearing had proceeded for 22 days. Based on the Court's experience to date, the remainder of the proceeding is likely to take many more weeks.

(b) The number of parties. There are 20 individual defendants as well as the State.

(c) The subject matter. The proceeding relates to 13 separate incidents together with a general allegation of negligence. The causes of action include assault and battery, wrongful arrest, wrongful imprisonment, malicious prosecution, defamation, trespass to land, trespass to goods and negligence.

(d) Complexity of issues. With so many incidents and causes of action, the proceeding raises very complex factual and legal issues. Those issues include questions of causation, and questions relating to exemplary and aggravated damages.

(e) Sensitivity. The proceeding involves evidence of sensitive episodes in Mr Slaveski's life which, to date, have had a tendency to give rise to strong emotional responses by him.

55 Furthermore, the psychiatrists' opinion that Mr Slaveski is incapable of managing his affairs in relation to this proceeding is applicable only to this proceeding. So, too, is my acceptance of that opinion. This is of fundamental importance because, as noted in [27] above, the authorities make it clear that incapacity for the purposes of Order 15 is issue specific.

56 For the above reasons and subject to the matters discussed above, I will make an order appointing Snezana Slaveska as Mr Slaveski's litigation guardian and dispensing with the requirement in r 15.02(3) that she be legally represented.

[1] Slaveski v Victoria [2009] VSC 423.

[3] On 5 October 2009, Mr Slaveski added Michael Leemon as a defendant pursuant to the leave granted in my order of 24 September 2009.

[4] Rules r 2.01(1); Clarey v Permanent Trustee Co Ltd [2005] VSCA 128, [53], [62] ('Clarey').

[5] Murphy v Doman [2003] NSWCA 249; (2003) 58 NSWLR 51, 58 [36] ('Murphy').

[6] Owners of Strata Plan No 23007 v Cross [2006] FCA 900; (2006) 153 FCR 398, 414 [66] ('Cross').

[7] Murphy [2003] NSWCA 249; (2003) 58 NSWLR 51, 58 [33].

[8] Gibbons v Wright [1954] HCA 17; (1954) 91 CLR 423, 437-8.

[9] Dalle-Molle v Manos [2004] SASC 102; (2004) 88 SASR 193, 199-200 [26] ('Dalle-Molle').

[10] Cross [2006] FCA 900; (2006) 153 FCR 398, 411 [53].

[11] [2002] EWCA Civ 1889; [2003] 3 All ER 162, 188 [74].

[12] Cross [2006] FCA 900; (2006) 153 FCR 398, 417 [75].

[13] Dalle-Molle [2004] SASC 102; (2004) 88 SASR 193, 199 [23].

[14] Martin v Azzopardi (1973) 20 FLR 345, 347-8.

[15] [2006] FCA 900; (2006) 153 FCR 398.

[16] [2006] FCA 900; (2006) 153 FCR 398, 413 [61].

[17] Murphy [2003] NSWCA 249; (2003) 58 NSWLR 51, 58 [35].

[18] Skrijel v Mengler [2003] VSC 128, [5] ('Skrijel').

[19] L v Human Rights and Equal Opportunity Commission [2006] FCAFC 114; (2006) 233 ALR 432, 439 [27], 440 [33]; Cross [2006] FCA 900; (2006) 153 FCR 398, 413 [63].

[20] L v Human Rights and Equal Opportunity Commission [2006] FCAFC 114; (2006) 233 ALR 432, 440 [33]; Bahonko v Moorfields Community [2008] VSCA 6, [25]-[26].

[21] Any settlement is subject to the Court's approval: Rules r 15.08(1).

[22] Cf Clarey [2005] VSCA 128, [43].

[23] Cf Skrijel [2003] VSC 128, [6].

[24] Dey v Victorian Railways Commissioners [1949] HCA 1; (1949) 78 CLR 62, 113; Clarey [2005] VSCA 128, [49].

[25] Pryor v Hennessy [1973] VicRp 20; [1973] VR 221, 222-3.

[26] O'Brien v Herald & Weekly Times Ltd [1937] VicLawRp 25; [1937] VLR 135, 137-8; Farrell v CSL Ltd (No 2) [2004] VSC 551.

[27] McKenzie v McKenzie [1971] P 33.

[28] [2003] VSC 128, [20].