Plaintiff v Defendants

Plaintiff v Defendants - [2009] VSC 596 - VSC 2009 case summary — Zoe

[14]

[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]

[20]

[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.

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[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.

[34]

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. ...

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Legislation Cited (2)

Cases Cited (7)