PRACTICE AND PROCEDURE - Application for leave to appeal from interlocutory decision - Proceedings instituted by Attorney-General for declaration that applicant a vexatious litigant under Supreme Court Act 1986 s 21 - Applicant caused to be issued 20 subpoenas addressed to various members of the judiciary, the Attorney-General, police officers and legal practitioners - Recipients required to give evidence and produce documents relating to perceived conspiracy against applicant - Subpoenas struck out on application by Attorney-General - Whether subpoenas oppressive - Whether subpoenas relevant to issues in the trial - Evidence sought irrelevant given nature of proceedings under s 21 - 'Fishing expedition' by applicant to determine viability of 'counterclaim' - Application for leave to appeal refused - Supreme Court (General Civil Procedure) Rules 2005 r 42.04(1); Botany Bay Instrumentation & Control Pty Ltd v Stewart [1984] 3 NSWLR 98 applied.

1 The Attorney-General for the State of Victoria has instituted proceedings to have the applicant, Ljupco Slaveski, declared a vexatious litigant under s 21 of the Supreme Court Act 1986 ('the s 21 proceeding'). This application for leave to appeal concerns interlocutory orders made in that proceeding.

**2 On 24 May 2013, some 20 subpoenas were issued in the s 21 proceeding at the request of Mr Slaveski. These subpoenas were directed to persons including the Attorney-General, the Chief Justice and the President of the Court of Appeal. The other recipients were persons who had been, in some way, connected with the various proceedings to which Mr Slaveski has been a party in recent years. These included further judicial officers of the Supreme Court, the Chief Magistrate, a Crown prosecutor, seven police officers, three legal practitioners, and persons who work within the Supreme Court.

3 By summons filed 28 May 2013, the Attorney-General sought an order that those subpoenas be set aside. The application was supported by affidavits sworn by Dr Adrian Hoel, the solicitor with the conduct of the proceeding on behalf of the Attorney-General.

4 The application was heard on 11 June 2013 by Almond J. On 12 June 2013, his Honour made orders wholly setting aside the subpoenas, having concluded that the evidence sought in the subpoenas would not add to the relevant evidence in the s 21 proceeding, and that it would be oppressive to require compliance. His Honour ordered that Mr Slaveski pay the Attorney-General's costs.

5 By summons dated 17 June 2013, Mr Slaveski sought leave to appeal from the orders of Almond J, and an order that the subpoenas be reinstated. As the Attorney-General's application that Mr Slaveski be declared a vexatious litigant was scheduled for trial on 20 June 2013, the application for leave to appeal was listed urgently and heard on 19 June 2013.

6 At the outset of the hearing of the application, Priest JA disclosed that he had previously given practical and ethical advice to a barrister who had appeared for Mr Slaveski in earlier proceedings. Mr Slaveski sought that Priest JA disqualify himself from hearing this matter. The Attorney-General did not support that application. The bench was reconstituted so that Priest JA could hear and determine Mr Slaveski's application alone.[1] Priest JA refused the application, and gave ex tempore reasons for doing so. Those reasons, in revised form, are annexed to these reasons as 'Annexure A'.

7 At the conclusion of argument on 19 June 2013, we made orders refusing leave to appeal and otherwise dismissing Mr Slaveski's summons, with costs. We indicated that we would publish our reasons at a later date. These are those reasons.**

**8 It is first necessary to say something further about the subpoenas which were issued on 24 May 2013. Each subpoena, with one exception,[2] is said to require the named party to attend to give evidence and to produce the documents specified in the schedule to the subpoena.[3]

9 Where the schedule to the Form 42A document is completed, Mr Slaveski seeks documents and things which he, apparently, believes will make out his claims that judicial officers and others are involved in a conspiracy against him. Many of the documents sought relate to an incident that occurred in court in February 2012, and which was referred to in the judgment of Maxwell P in Slaveski v Rotstein & Associates Pty Ltd.[4]

10 We record our agreement with Almond J's remark that the 'extravagant allegations made by Mr Slaveski are scandalous in nature and form and appear ... to lack a prima facie foundation'. [5]**

**11 Almond J's reasoning commenced with an analysis of the nature of the s 21 proceeding, in order to ascertain whether the documents and things specified in the schedules to the subpoenas might be relevant to those proceedings.

12 His Honour noted that the Attorney-General had applied to the Court for orders that:**

(a) Mr Slaveski be declared a vexatious litigant; and

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

13 His Honour next quoted the following passage from the judgment of Pagone J in Attorney-General for the State of Victoria v Gargan,[6] concerning the nature of a proceeding under s 21 of the Supreme Court Act 1986:

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 to 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) 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". Ormiston JA went on to say, however, that it should not be thought that in every application 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". In Attorney-General (Vic) v Horvath, 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 an 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.

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.[7]

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

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[s] 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 give evidence.

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.

In the circumstances, in my opinion, to require the attendance at court of the subpoenaed persons would be oppressive.[8]

15 His Honour went on to make findings particular to each subpoena. He considered that all of the subpoenas were too vague, and that many of them were incomprehensible.

The relevant principles on the application for leave to appeal

16 The application before Almond J was determined under r 42.04 of the Supreme Court (General Civil Procedure) Rules 2005. That rule is in the following terms:

(1) The Court may, of its own motion or on the application of a party or of any person having a sufficient interest, set aside a subpoena in whole or in part, or grant other relief in respect of it.

(2) An application under paragraph (1) shall be made on notice to the issuing party.

(3) The Court may order that the applicant give notice of the application to any other party or to any other person having a sufficient interest.

**17 The Court has a broad power to set aside subpoenas, including where compliance with the subpoena would be oppressive, and where the subpoena has been issued for an impermissible purpose, such as for a 'fishing expedition'. [9]

18 Almond J's orders were plainly interlocutory in character.[10] Mr Slaveski therefore requires leave to appeal.[11] Leave will only be granted where there is sufficient doubt attending the decision below and substantial injustice would be done were the decision to stand.[12] Further, the decision below relates to a matter of practice and procedure. An appellate court will exercise particular caution in approaching decisions of that kind.[13]**

**19 The applicant appeared before us in person in support of his application for leave to appeal. Many of his submissions involved a protracted recitation of his belief that various judicial officers, court staff, members of the legal profession and police are involved in a wide-ranging conspiracy against him.

20 Mr Slaveski made detailed reference to an affidavit he had sworn on 11 June 2013 in support of an application to vacate the trial date of 20 June 2013 which had been fixed for the s 21 proceeding. That affidavit exhibited a draft 'counterclaim' against the Attorney-General (or possibly against 'Robert Clark for the State of Victoria') seeking damages for personal injury and nervous shock arising from a threat said to have been made to Mr Slaveski in February 2012 (to which threat reference was made in Maxwell P's judgment in Slaveski v Rotstein & Associates Pty Ltd).

21 The affidavit also contained allegations that certain court staff are 'in conspiracy' with the CEO of the Court in relation to the listing of the matter. That particular allegation appears to be founded on the relisting of the trial date from 11 June 2013 to 20 June 2013.

22 Like Almond J, we found Mr Slaveski's argument difficult to understand. We consider that Mr Slaveski's central contention, in substance, was that he was 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.

23 It is convenient to refer to two particular allegations Mr Slaveski made in the course of argument before us. First, Mr Slaveski alleged that the Chief Justice had directed Whelan J to arrive at a finding of guilt in contempt proceedings[14] which had been brought against him in relation to his behaviour during a long-running trial before Kyrou J.[15] Secondly, Mr Slaveski said that the Chief Justice had arranged for him to be seen by Mr Coady,[16] a barrister who, acting on instructions from the Chief Justice, had told him that he would be able to arrange his release from prison if he agreed not to sue the police. These allegations were plainly scurrilous. When challenged by the Court, Mr Slaveski offered no evidence in support of them other than his bare declaration that he was the subject of a wide-ranging conspiracy orchestrated by members of the judiciary.

24 Before us, Mr Slaveski added Almond J to the list of those he suspected of involvement in the conspiracy. That was apparently on the basis that Almond J's reasons for his decision of 11 June 2013 had not been provided to him until 18 June 2013, and the fact that the transcript of 11 June 2013 was only made available on 19 June 2013. Almond J, Mr Slaveski asserted, had acted deliberately so as to deprive him of the material necessary to argue his application for leave to appeal.[17]

25 In oral argument, Mr Slaveski further submitted that Almond J had been biased, and ought to have recused himself from hearing the Attorney-General's application to set aside the subpoenas. That submission was apparently based upon Almond J's having refused to answer in detail Mr Slaveski's questions about his relationship - both professional and personal - with the Attorney-General.

26 Because of the late listing of the application for leave, the Attorney-General was unable to be represented by counsel, and was instead represented by the solicitor with the conduct of the s 21 proceeding. He opposed the grant of leave to appeal, and in substance adopted the submissions that had earlier been made before Almond J.**

Conclusion as to Mr Slaveski's application for leave to appeal

**27 At the conclusion of oral argument, we were firmly of the view that Almond J's decision to strike out the subpoenas was not attended with sufficient doubt to warrant the grant of leave to appeal. Indeed in our opinion, his Honour's decision was plainly correct.

28 To refer to but one example, a judicial officer of this Court to whom a subpoena was addressed was required to produce 'notes, telephone records and conversations' with various judicial officers and court staff, as well as the Attorney-General, 'in relation of the Bankruptcy, interfering /set me up in the Supreme Court matters, to make be bankrobed to I do NOT SUE the State of Victoria and Police.'[18] A request for documents or things expressed in those terms is very likely to be meaningless to its recipient.

29 The matters relevant to the Attorney-General's application under s 21 of the Supreme Court Act 1986 are, as observed in Attorney-General (Vic) v Horvath, 'to be found in court files - documents, judgments, orders and reasons'.[19] The documents sought in the schedules to the subpoenas under challenge do not rationally bear upon the 'overall impression created by the number of proceedings, their general character and their results'.[20]

30 The only apparent purpose of the subpoenas is to enable access to evidence which would determine whether Mr Slaveski has a viable 'counterclaim'. It is, in that respect, an entirely speculative 'fishing expedition'.

31 In relation to Mr Slaveski's bias point, we did not consider that a 'fair-minded lay observer might reasonably [have] apprehend[ed]' that Almond J 'might not bring an impartial mind to the resolution of the question [he was] required to decide'.[21]

32 The passage of the transcript before Almond J upon which Mr Slaveski relied in support of his bias argument recorded an exchange during which Mr Slaveski asked his Honour whether he 'kn[e]w Mr Robert Clark at all'. Mr Slaveski continued to press Almond J for details as to his relationship with the Attorney-General. His Honour responded: 'I don't know him personally. I only know him professionally because as the first officer of this State, the Attorney-General appoints all the judges'.

33 Mr Slaveski made an application that his Honour disqualify himself from hearing the matter, which his Honour refused peremptorily. The transcript of the exchange reveals that Mr Slaveski was, at times, verbally abusive.[22]

34 A fair-minded lay observer would be aware both of the Attorney-General's role in appointing judicial officers, and of the rudimentary principle of court procedure that judges are not to be interrogated by litigants, and certainly not in terms that are entirely offensive. His Honour's disinclination to respond to questions put to the bench by Mr Slaveski does not give rise to any apprehension of bias.

35 Of course, a fair-minded observer would also have appreciated that his Honour would have been well aware of the 'matter of prudence and professional practice' that 'judges should disclose interests and associations if there is a serious possibility that they are potentially disqualifying'.[23] His Honour's failure to note any such associations is indicative that the matters relied upon by Mr Slaveski as showing bias were wholly speculative.

36 Finally, there is no substance in Mr Slaveski's allegation that Almond J was actually biased (or that there was an apprehension of bias) on account of the delay in the provision of reasons for decision and the transcript of 11 June 2013. The delay was relatively slight, and only acquired significance because of the urgent listing of this application. It is not evidence of a wide-ranging conspiracy such as that alleged by Mr Slaveski. It is not unusual for revised reasons to be published some time after the making of orders. It is also not unusual for there to be delays in the production of transcript. In any event, Mr Slaveski had an opportunity to consider Almond J's reasons for decision. We also sought to ensure that Mr Slaveski had an opportunity to read the transcript of 11 June 2013, and invited him to do so during the luncheon adjournment. The transcript is not voluminous. Mr Slaveski had ample time to read it, and to make any submissions he wished as to its contents.**

**37 At various times during before us, Mr Slaveski asked his wife, Mrs Slaveska, to make submissions on his behalf. We permitted Mrs Slaveska to address us. She did so with far greater clarity than her husband.

38 One point raised by Mrs Slaveska concerned Almond J's order that Mr Slaveski pay the 'costs of and incidental to the summons filed 28 May 2013, including the costs of and incidental to the hearing on 4 June 2013'. Mrs Slaveska submitted that her husband should not be required to pay the costs of 4 June 2013, as he did not attend on that day. It was submitted that the Supreme Court Registry and the Attorney-General had been advised that Mr Slaveski was in Thailand, and would only be returning on 5 June 2013.

39 On the hearing of the application before us, Dr Hoel informed us that there had been no formal application from Mr Slaveski to adjourn the matter. Dr Hoel added that he had prepared consent orders adjourning the matter from 4 June 2013 to 11 June 2013, but that these had not been signed by Mr Slaveski. In those circumstances, the application remained listed for 4 June 2013. Mrs Slaveska attended on that day and represented Mr Slaveski. The matter was heard by Pagone J, who ordered that the hearing of the application be adjourned until 11 June 2013, and deferred compliance with the subpoenas. His Honour reserved costs.

40 In those circumstances, we were not persuaded that there was any basis to interfere with Almond J's exercise of discretion as to costs.**

1. Mr Ljupco Slaveski makes application that I disqualify myself from sitting on this application for leave to appeal. The principles that govern an application that a judge disqualify himself or herself on the basis of perceived bias are wellknown and are set out conveniently in the decision of the High Court in Johnson v Johnson[24] where it was held that:

[T]he test to be applied in Australia in determining whether a judge is disqualified by reasons of the appearance of bias ... is whether a fairminded lay observer might reasonably apprehend that the judge might not bring an impartial and unprejudiced mind to the resolution of the question the judge is required to decide.[25]

**2 At the beginning of the oral hearing of Mr Slaveski's application for leave to appeal the orders of Almond J, I disclosed to him and to the respondent that, prior to my appointment to this Court and at a time when Mr Slaveski was represented by Mr Alstergren, now of Senior Counsel, Mr Alstergren sought my advice in relation to Mr Slaveski's proceedings for contempt then pending before Whelan J. I disclosed that I had given advice to Mr Alstergren about procedural and practical issues and that later, after Mr Slaveski had withdrawn Mr Alstergren's instructions, that in my capacity as Deputy Chairman of the Ethics Committee of the Victorian Bar, I had given Mr Alstergren some ethical advice.

3 Mr Slaveski has identified four, or perhaps five, reasons why he says I should recuse myself based on perceived bias. The first is, as I understand it, because I knew that his case was to be heard in this Court and I had given some advice to Mr Alstergren. That, with respect, is only a repetition of history and does not provide a reason as to why the fairminded lay observer might apprehend that I might not bring an impartial and unprejudiced mind to the resolution of his case.

4 The second, as I understand it, is that possibly because of my advice, he 'did two months in prison', as he put it.

5 The third is that he feels - but does not identify the reason why he would feel so - that I 'know everything about him'.

6 The fourth is, in his words, 'I submit that Mr Alstergren told you everything about me', and further 'ninetyfive per cent of judges are biased against me'.

7 The fifth and final reason advanced was that I will 'have to answer to God'.

8 The fairminded lay observer contemplated by the test is one who has a knowledge of relevant facts.[26] Mr Slaveski, because of his unfamiliarity with these matters, possibly does not realise that it is one of the usual features of practice at the Victorian Bar that junior barristers, and Mr Alstergren at the relevant time was a member of the junior Bar, frequently seek out advice, of an objective nature, from their more senior colleagues, as happened in this case, in order that they can, for themselves, formulate their own forensic strategies. I would be surprised if the advice sought from me was not part of a range of advice that was sought by Mr Alstergren in the lead up to Mr Slaveski's case.

9 Moreover, it is usual that when members of the junior Bar, or indeed the inner Bar, find themselves confronted with an ethical problem, they will seek out a member of the Ethics Committee, as I then was, to seek ethical advice on the way in which they should conduct themselves. That was what Mr Alstergren did.

10 A fairminded lay observer, knowing that this is the way that the Bar operates, would not come to the conclusion that the senior barrister who gave advice and who then became a judge, would in any way be influenced in a manner adverse to a person in Mr Slaveski's situation.

11 In my opinion, the reasonable and fairminded observer that the test contemplates, having regard to the submissions made by Mr Slaveski in this case and the disclosure made by me concerning it, would not come to the conclusion that I might not be able to bring an impartial and unprejudiced mind to the resolution of his case.

12 For those reasons I refuse Mr Slaveski's application.**

[1] See, eg, R v Nicholas [2000] VSCA 49; (2000) 1 VR 356, 370 [47] (Phillips CJ, Ormiston and Chernov JJA) and Chernov JA's annexed reasons to that judgment concerning the application for his Honour to disqualify himself. Those reasons are not reproduced in full in the Victorian Reports, but are set out at [2000] VSCA 49; (2000) 111 A Crim R 490, 547 (Chernov JA).

[2] The subpoena addressed to the Attorney-General has the first two boxes on the Form 42A crossed out, seemingly requiring that the Attorney attend to give evidence and produce the subpoena or a copy of it, along with the documents specified in the Schedule. However, no documents are specified in the Schedule.

[3] On the majority of the Form 42A documents, a cross appears in the boxes next to the first and third options (namely, 'to attend to give evidence' and 'to attend to give evidence and to produce this subpoena or a copy of it and the documents or things specified in the Schedule'). This is despite the form instructing that only one option be selected. Mr Slaveski informed us that his wife, who had arranged for the issue of the subpoenas, had made a 'typographical error' in ticking the wrong boxes. In essence, Mr Slaveski informed this Court that he wanted each and every one of the witnesses subpoenaed to give evidence, and produce documents, in the s 21 proceeding, and in support of his 'counterclaim'.

[4] [2012] VSCA 291, [11]-[12] (Maxwell P).

[5] Attorney-General for the State of Victoria v Slaveski (Unreported, 12 June 2013) 5 [18] ('Reasons').

[6] [2013] VSC 222.

[7] Ibid [6]-[7] (citations omitted).

[9] See Botany Bay Instrumentation & Control Pty Ltd v Stewart (1984) 3 NSWLR 98, 100-101 (Powell J) referring to the Court's 'undoubted [inherent] jurisdiction to set aside a subpoena in a variety of cases'; Pico Holdings Inc v Voss [2002] VSC 269; Liberty Financial Pty Ltd v Scott [2004] VSC 382.

[10] Brouwer v Titan Corporation Ltd (1997) 73 FCR 241, 242-3 (Black CJ, Lindgren and Sackville JJ).

[11] Supreme Court Act 1986 s 17A(4)(b).

[12] Niemann v Electronic Industries Ltd [1978] VicRp 44; [1978] VR 431, 433 (McInerney J).

[13] Adam P Brown Male Fashions Pty Ltd v Phillip Morris Inc [1981] HCA 39; (1981) 148 CLR 170, 177 (Gibbs CJ, Aickin, Wilson and Brennan JJ).

[14] [2011] VSC 643.

[15] We note that in Slaveski v Rotstein & Associates Pty Ltd [2012] VSCA 291, [33], Mr Slaveski made an application seeking that the Chief Justice disqualify herself because 'She is bias, she prolonged my appeal [from the contempt proceeding] while I was in Custody and made me spend 2 months in prison...'.

[16] Who appeared for Mr Slaveski under the Victorian Bar Duty Scheme.

[17] Indeed, we note that after the hearing of 19 June 2013, Mr Slaveski sent an email to registry staff and our associates, part of which stated: 'I have NO doubt that he [Almond J] is in Conspiracy with the Attorney General Robert Clark to declare me Vexatious Litigant. Further more, Mr [sic] Almond was positioned [sic] by Attorney General to dismiss/set aside All my 20 Subpoenas'.

[18] Quoted as appears in the original.

[19] [2001] VSC 269, [28] (Ashley J).

[21] Ebner v Official Trustee in Bankruptcy [2000] HCA 63; (2000) 205 CLR 337, 344 [6] (Gleeson CJ, McHugh, Gummow and Hayne JJ) ('Ebner').

[22] We should add that Mr Slaveski was also, on occasion, verbally abusive to this Court during the course of his oral submissions.

[23] Ebner [2000] HCA 63; (2000) 205 CLR 337, 360 [69] (Gleeson CJ, McHugh, Gummow and Hayne JJ).

[24] [2000] HCA 48; (2000) 201 CLR 488.

[26] It should be noted that, at the outset of the application that I should recuse myself, I explained to Mr Slaveski the legal test that he would need to satisfy in order to be successful in his application.