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[2015] VSCA 31
Court of Appeal (Vic)
2015-03-04
Williams J, Warren CJ
Original judgment source is linked above.
Attorney-General (Vic) v Slaveski [2014] VSC 48 (Williams J)
APPEAL - PRACTICE AND PROCEDURE - Application by LS by summons for extension of time and for leave to appeal against order declaring him to be a vexatious litigant - Order at trial appointing SA to be litigation guardian of LS - Application by LS in own name - No reference to SA - Having regard to order of appointment and context, SA did not continue as litigation guardian of LS beyond trial - Appointment of SA as litigation guardian in respect of appellate process not possible having regard to state of material before Court - Summonses seeking to remedy procedural defects dismissed - Counsel instructed only by SA - No appearance by or for LS - Application by summons by LS dismissed without adjudication on merits.
Supreme Court (General Civil Procedure) Rules 2005 (Vic) r 15.03(3)
Kay v Attorney-General (Vic) [2000] VSCA 176; (2000) 2 VR 436
1 On 23 February 2015, the Court ordered ('the February 2015 orders') that -
(1) The 'amendment summons' filed 27 June 2014 be dismissed.
(2) The 'alternative summons' filed 27 June 2014 be dismissed.
(3) The summons filed 7 April 2014 by Ljupco Slaveski be dismissed without adjudication of the merits and without considering whether the conduct of Slaveski should lead to the Court dismissing any further application made by him without adjudication on the merits
2 The Court indicated that it would subsequently publish its reasons for the February 2015 orders. These are our reasons.
3 Before the Court was an application to extend time within which to seek leave to appeal against an order made on 25 February 2014 by Williams J in the Trial Division, and for leave to appeal against that order. Her Honour's order was that Ljupco Slaveski ('LS') be declared a vexatious litigant ('the declaration').
4 The application first came on before this Court[1] on 6 June 2014. Two questions were then agitated. First, was the application regularly brought? Second, were there circumstances such that the Court should dismiss the application without considering its merits?
5 The Court made these orders ('the June 2014 orders'):
6 Paragraph 1 of the June 2014 orders led on to the filing (by the wife of LS, Snezana Angeleska ('SA')) of the summonses the dismissals of which are referred to in paragraphs 1 and 2 of the February 2015 orders; whilst submissions made in response to paragraph 3 of the June 2014 orders, supplemented by oral argument, resulted in paragraph 3 of the February 2015 orders, and the particular form of that paragraph.
The Attorney-General's application that LS be declared a vexatious litigant
7 The Attorney-General ('the Attorney' or 'the respondent') made application under s 21(1) of the Supreme Court Act 1986 ('the Act'), which was then the relevant provision, for an order declaring LS to be a vexatious litigant. The application was heard by Williams J in the Trial Division over a seven day period in June, August and September 2013. The hearing was a fractured one.
8 On 4 September 2013, in the course of the hearing, Williams J made an order appointing SA to be litigation guardian for LS pursuant to r 15.03(3) of ch 1 of the Supreme Court (General Civil Procedure) Rules 2005 ('the Rules'). The form of the order was relevantly as follows:
[SA] be appointed litigation guardian for the defendant in this particular proceeding under r 15.03 ...
9 In the 'Other matters' section of the order, there was recorded the following:
Mrs Snezana Angeleska (Slaveska) consented to her appointment as litigation guardian to the defendant on the condition that the plaintiff give an indication that it would not seek a costs orders [sic.] against her as litigation guardian, absent exceptional circumstances.
A copy of email correspondence sent to the Court and to the defendant by the plaintiff's solicitor stating his instructions that the plaintiff will not seek a costs order against Ms Angeleska (Slaveska) for the plaintiff's principal application, absent exceptional circumstances, has been placed on the court file.
10 The circumstances in which the order appointing SA as litigation guardian for LS came to be made were set out in [2] to [17] of the judge's reasons for making the declaration.[2] Thus:
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.
HER HONOUR: Mr Slaveski.
MR SLAVESKI: Yes.
HER HONOUR: That door is remaining open during the proceeding.
MR SLAVESKI: What about the - - -
HER HONOUR: Would you be good enough to sit down. Take your seat behind Mr Glick, please.
MR SLAVESKI: Close the fuckin' door, mate.
TIPSTAFF: No, sir.
MR SLAVESKI: Close the door, mate. Close the door, mate. Why are the guns here. What sort of - - -
HER HONOUR: Mr Slaveski, please sit down. Otherwise I'll have to leave the bench. Sit down.
MR SLAVESKI: But what are you running? What are you running, guns here?
HER HONOUR: Just have a seat.
MR SLAVESKI: What sort of a fuckin' court room is this, mate. What sort of justice?
HER HONOUR: Mr Slaveski, sit down, please, so we can continue with the proceeding.
MR SLAVESKI: Yeah, I can't sit here. They've got guns there, mate.
HER HONOUR: Sit behind Mr Glick.
MR SLAVESKI: No, I'll sit here so I can see the guns. I don't trust these mother fuckers. They've got - - -
HER HONOUR: Mr Slaveski, that's enough, thank you.
MR SLAVESKI: Your assistant threatened to shoot me.
HER HONOUR: That's enough, Mr Slaveski. Sit around behind Mr Glick, please, in the place where we've arranged for you to sit. All right. I'll leave the bench, Mr Slaveski. I want you to sit behind that - in that position behind Mr Glick and I will return when you are.[5]
11 A number of matters emerge from her Honour's recitation of events.
12 First, at a time when the hearing was well-advanced, LS stated that he was mentally unfit to proceed. But the judge, generously, did not treat the timing of his statement as bearing upon his bona fides. Rather, she gave him the opportunity of providing material which would support the appointment of a litigation guardian.
13 Second, Dr R W Farnbach, psychiatrist, to whose report the judge referred at [6] in her reasons, opined that the 'basic condition' from which LS suffered was bipolar disorder, Type 1. Post-traumatic stress disorder was also present. LS had presented on 22 August 2013 with the first of those disorders present in florid form. The doctor reported that treatment had been instituted, that it should improve LS's condition satisfactorily, but that presently he was 'not responsible for the behaviours which have put him in conflict with the legal system and its agents'.
14 Her Honour was prepared to treat the report, although it contemplated that LS would improve with treatment, as justifying the making of an order under r 15.03 of ch 1 of the Rules. In arriving at that conclusion, her Honour did not accede to criticisms of the sufficiency of the report advanced for the Attorney.
15 Third, her Honour was persuaded to dispense with the requirement that SA act through a solicitor, as is required by r 15.02(3). Her Honour had power to dispense with the operation of that rule pursuant to r 2.04.[8] Apparently, the circumstances to which her Honour referred at [12] in her reasons were the preparedness of senior counsel to defend the Attorney's application without an instructing solicitor, taking instructions directly from SA.
16 Her Honour's preparedness to dispense with the requirement that SA act through a solicitor was to the latter's advantage. But the prior history of litigation involving LS, with the participation of SA, made the step one fraught with uncertainty. It proved to be so in this instance. LS and SA walked out of the hearing on 16 September, SA 'sacking' counsel on the way out.
17 Each step taken by the judge was evidently to the intended benefit of LS or SA. We add that LS did not resist appointment of a litigation guardian, and that SA accepted appointment. LS and SA, it may be added, had much acquaintance with litigious process at that time.
18 A postscript. Irony abounds. By grounds of appeal filed in support of the application it was asserted that the judge erred by dispensing with the requirement that SA act by a solicitor.
19 Resuming the chronology, on 25 February 2014, the judge, being satisfied of the matters set out in s 21(2) of the Act, exercised her discretion and made the declaration.
20 On 10 March 2014 a notice of appeal, in which the appellant was named as LS, stating that it had been prepared by him and was filed on his behalf, and which was on its face signed by him, was filed in the Court of Appeal Registry, and served upon the respondent. The filing and service were effected by SA.
21 The Registry wrote to LS at the address nominated in the notice of appeal, informing him that an application for leave to appeal was required. SA, not LS, opened the letter, as is apparent from paragraph 7 of her second affidavit sworn 7 May 2014.
22 Leave to appeal was required because an order declaring a person to be a vexatious litigant has been held to be an interlocutory order.[9] Thus, the notice of appeal which had been filed and served had not initiated an appellate process.
23 On 7 April 2014, a summons dated 31 March ('the April summons') was filed with the Registry, and served. Again, LS was identified as the appellant.[10] Again, on its face, the document had been prepared by him and was filed on his behalf. Again, on its face, he had signed it. Again, SA attended to filing and service. The April summons is the summons referred to in paragraph 3 of the February 2015 orders.
25 By the April summons, four orders were sought, of which it is only necessary to mention two:
26 We were prepared to assume that the application for extension of time for leave to appeal encompassed an application for leave to appeal. The latter application was out of time, so it was correct to seek an extension of time.
27 By her second affidavit of 7 May 2014, SA averred that -
... although I had been made my husband's litigation guardian in the hearing before Justice Williams on 7 April 2014, on my husband's instructions, I filed and served the Summons seeking leave to appeal the Orders made by the Justice Williams, and did so in my husband's name and not as his litigation guardian.
28 An important question for determination by the Court on 23 February 2015 was whether, in April 2014, SA continued to be LS's litigation guardian in the proposed appellate process. A related question was whether SA acted as litigation guardian in filing the April summons.
29 The answer to the second of those questions was clear-cut. SA plainly averred that she did not act in that capacity in filing and serving the two documents. That was consistent with paragraphs 20, 21 and 17 of an affidavit apparently sworn by LS on 6 May 2014 in Macedonia. It is also entirely consistent with the form of the documents.
30 We should finally say on this topic, that, at the hearing on 23 February 2015, it was unequivocally accepted that it was LS who filed the April summons,[13] and that he did so in his own right.
31 After the hearing on 6 June 2014, the following summonses were filed:[14]
• Summons by LS ('the amendment summons') seeking that 'the appeal proceed on behalf of the applicant by his litigation guardian appointed by the order of Justice Williams made 4 September 2013' and that he have leave to amend the April summons into the form following:
• Summons ('the alternative summons') seeking that LS, by his litigation guardian SA, be granted an extension of time to apply for leave to appeal, and that leave be granted.
32 The amendment summons and the alternative summons are referred to in paragraphs 1 and 2, respectively, of the February 2015 orders.
33 Leading counsel appearing pro bono informed the Court on 23 February that he and his junior were acting on instructions given them by SA, and that they had received no instructions from LS. We add that SA was present in court, as counsel indicated to us; but that LS was not.
34 Counsel explained the two summonses referred to in [31] above as follows: The true position was, he submitted, that SA continued to be the litigation guardian of LS for the purposes of any appellate process. Omission of reference to SA in the April summons was an error, explained by[15]er belief15 that the Registry would reject a document filed in her name. The amendment summons sought to regularise the position. It was based on the premise that SA continued to be the litigation guardian of LS without the need for a further order. But if the Court concluded that SA did not continue to be the litigation guardian of LS beyond the trial, then it should permit the initiation of a fresh application for SA to be appointed the litigation guardian of LS, and grant the application for an extension of time for leave to appeal, and leave to appeal the declaration, brought in the name of SA as litigation guardian of LS. That is what would be achieved by the alternati[16] summons.16
35 By written submissions, it was contended that the applications for extension of time and for leave to appeal were a continuation of the proceeding in respect of which SA was appointed litigation guardian by Williams J. That was said to flow from - (a) the interlocutory nature of a proceeding brought under s 21 of the Act; (b) SA's appointment having been 'issue specific', and the same 'issue' arising on the proposed appeal; (c) observations of Chernov JA in Kay;[17] and (d) the undesirability of a person under a disability losing the cloak of protection offered by the court upon the handing down of a trial decision.
36 It was submitted for the respondent that the order appointing SA as litigation guardian applied only to the matter at first instance; but that, in any event, the application to this Court has not been validly instituted. In support of the first submission, counsel directed the Court's attention to - (a) the language of s 17 of the Act and the definition of 'proceeding' in r 1.13 of ch 1 of the Rules; (b) the terms of the order made by Williams J appointing SA the litigation guardian of LS; and (c) the basis upon which the respondent agreed not to seek costs against SA. In support of the second submission, reliance was placed upon the fact that the April summons was commenced by LS and not by SA.
Conclusion: the appointment of SA as litigation guardian was confined to the trial
37 We concluded that the form of the order made by Williams J appointing SA to be litigation guardian of LS was intended to, and did, relate only to the conduct of the trial. In our opinion, the order had to be understood in the context in which it was made, and the improbable consequences of understanding the order in any other way.
38 The order itself referred to 'this particular proceeding'. Read in ignorance of context, the language which her Honour used was perhaps compatible both with the appointment not extending into appellate process, and with it doing so. We do not say that an order, suitably expressed, could not have had the latter effect. It is unnecessary to go so far. But the context in which the order was made showed that it had no such intended effect. Context is important, for it is able to give meaning to the noun 'proceeding' where used in an order.[18] As to context, we considered that the following matters were relevant.
39 First, SA would not accept appointment unless the Attorney undertook not to seek a costs order against her. Both the Judge and the Attorney were placed in a difficult position. There was some evidence that LS required a litigation guardian in order that the trial be completed. Other than SA, no prospective litigation guardian was on the horizon. In the event, the Attorney, as plaintiff, gave that undertaking - in respect of 'the plaintiff's principal application'.[19] That language was not quite precise, but its intent, in our view, was clear. In the peculiar circumstances, the undertaking sought was given, but only in respect of the trial. The giving of any wider undertaking was most improbable. Where would it end? In the Court of Appeal? In the High Court? We did not doubt that the judge understood the limited nature of the undertaking, and that her Honour's order responded to it.
40 Second, the order was made in the course of the trial, upon medical material which, assuming its sufficiency, predicted that LS's condition would improve satisfactorily with treatment. In those circumstances, it is improbable that the judge would have made an order operative beyond the trial.
41 Third, in the circumstances which we have outlined, the judge was persuaded to dispense with the requirement that SA act through a solicitor. That facilitated the continuation of the trial. But it should not be supposed that her Honour's order granting such dispensation was intended to be open-ended. It would have been a large step, and an improbable one, for her Honour to have granted such a dispensation in respect of any appellate process that might ensue.
42 We should say a little about several of the submissions pressed upon us by counsel for SA.
43 First, it was contended, as we have said, that an order made under r 15.02 of ch 1 is 'issue specific'; and that the same issue was common to the trial and to the intended appellate process. But, accepting the identity of 'the issue', in our opinion the answer to the problem lay in the words of the order, understood in context.
44 Second, counsel relied, as we have already noted, upon observations of Chernov JA in Kay.[20] But the question which arose there was whether a person declared to be a vexatious litigant was obliged, by s 21(3) of the Act, to seek leave of the court to bring an application for leave to appeal against the order at first instance. If that was so, there would have been, in substance, a duplicated enquiry. The words 'legal proceedings' in s 21(3) should not be construed to produce such a silly outcome. That was so although, as Chernov JA noted, some authorities supported the view that the filing of a notice of appeal or an application for leave to appeal amounts to the commencement of a legal proceeding.
45 As an exercise in statutory construction, the decision in Kay[21] made good sense. But in our view it did not assist the argument which counsel advanced.
46 Third, counsel submitted that LS would have been left, in effect, without an opportunity to seek appellate review unless SA remained his litigation guardian beyond the trial. But LS was not left without appellate recourse at all. It was always open to him, if the circumstances warranted it, to seek the fresh appointment of a litigation guardian in order to prosecute an application for leave to appeal. If there was delay in that connection, it would be a circumstance telling in favour of any necessary extension of time. Alternatively, LS could simply have initiated relevant applications - as he did in fact. Failure to appoint a litigation guardian before commencing would have been irregular. But the irregularity would have been capable of remedy. We add that, as it appears to us, (albeit without the benefit of argument) her Honour's order appointing SA could have been drafted so as to specifically extend to - but not beyond - the initiation of appellate process. Such an order was apparently not sought.
The consequences of SA not being litigation guardian of LS beyond the trial
47 Paragraph 1 of the February 2015 orders inevitably flowed from our conclusion that SA did not continue as the litigation guardian of LS beyond the trial.
48 Next, for the reasons which follow the relief sought by the alternative summons could not possibly have been granted. Thus paragraph 2 of our orders.
49 The alternative summons - by intention, at least - sought to initiate a fresh application for SA to be appointed as litigation guardian and to extend time and for leave to appeal. But there was a want of evidence that LS is presently in need of a litigation guardian. Further, there was no compliance with r 15.06 of ch 1. There was no written consent of SA to act; and there was no certificate of a solicitor for LS. Further still, counsel informed us that SA had been unable to obtain a solicitor through whom to act.
50 Any one of those deficiencies was enough to doom the alternative summons. But we should say a little more about the first of them. Counsel relied upon the medical report placed before Williams J in September 2013, a second medical report which found its way onto the court file in late October 2014, and the content of an email recently sent by LS to the Registry, and copied to counsel and to the solicitor for the Attorney. Counsel submitted that the email was in a form consistent only with the bipolar disorder which has been diagnosed as affecting LS being in a florid, uncontrolled, state - from which the Court should conclude that LS is presently a handicapped person.
51 There was, viewed from a lay standpoint, considerable force to that submission. But none of the members of the Court is a medical practitioner, let alone a psychiatrist; and we considered that it would be wrong to intrude upon a field of specialist enquiry in the absence of expert opinion which addressed that specialist area.
52 We turn to paragraph 3 of the February 2015 orders. The April summons was on foot. But LS was not in court, and counsel had no instructions to act for him. There was no one to advance whatever case LS might seek to raise in support of the applications to extend time and for leave to appeal.
53 In the circumstances, we considered that the best course was to dismiss the April summons but without adjudicating upon its merits (or otherwise) and - because it would be an exercise in speculation - without any attempt to adjudicate upon the merits of any fresh application which LS might seek to pursue arising out of the declaration.
54 In paragraph 3 of our orders, we left open the question whether, if LS should bring some fresh application, the Court might dismiss it without adjudication on the merits because of his 'conduct'. This deserves some explanation.
55 The Attorney commenced a proceeding on 23 August 2013 seeking that LS be punished for contempt of court. The proceeding is a matter of public record, as are the details of the matters relied upon by the Attorney.
56 On 17 October 2013, the judge in the Trial Division seised of that matter signed an arrest warrant referable to LS. It commanded that he be arrested and brought before the Court to answer a charge of contempt, and that he be detained in the meantime unless he provided a signed undertaking in appropriate form to appear before the Court to answer the charge and to submit to its judgment. The existence of that warrant is another matter of public record.
57 The originating motion by which the particulars of the alleged contempt were specified was amended from time to time. The most recent amendment was made on 14 April 2014.
58 The originating motion, as first framed, specified four contempts. Two of them involved LS allegedly sending bank cheques to judges of the Court - several of whom were scheduled to hear appeals by LS, and others of whom might preside at trial or on appeal in matters involving LS. Another cheque was allegedly sent to the Chief Executive Officer of the Court. A distinctly different contempt was a phone call allegedly made by LS to an Associate Judge who had determined an application adversely to him. What LS said allegedly involved, inter alia, intimidation of the judge, and a threat of punishing her for her adverse decision.
59 By the originating motion, as amended on 14 April 2014, the number of alleged contempts had grown from four to 12. One related to the alleged conduct of, and words spoken by, LS in a proceeding before the Chief Magistrate on 19 August 2013. Six other alleged contempts related to emails allegedly sent by LS - on two occasions, to a solicitor in the Victorian Government Solicitor's Office and in other instances to the Court. Speaking generally, those emails were replete with threats, intimidatory statements, threats to sexually assault women judges, and threats to kill more generally. In several instances, the stream of emails of which LS was allegedly the author specifically mentioned the trial judge in the present proceeding. One was sent to the Court on 25 February 2014, and referred to her Honour's judgment. A second, dated 11 March, was sent, inter alia, to her Honour's associate.
60 Various of the emails were directed to the associate to the judge managing the contempt proceeding.
61 Transcript of mentions of the contempt proceeding on 3 February and 14 April 2014 reveals that SA was then present, but not LS. That is explicable when regard is had to the averral by SA that LS left Australia in September 2013, that in February 2014 he was in Thailand, and that in May 2014 he was in Europe.
62 SA swore an affidavit on 21 July 2014. She deposed, inter alia, that - (a) LS left the hearing before Williams J because he feared for his life; (b) he remained overseas because of that fear; (c) on 17 October 2013 she told King J (the judge managing the contempt proceeding) the reason why LS was not in court; (d) King J stated that she did not believe that LS had absconded, but she was satisfied that he did not intend to return to Australia; (e) on 16 June 2014, the day set down for the hearing of the application, she told King J that LS had unsuccessfully applied for representation by a duty barrister; (f) on 17 June, LS emailed the Court, stating that he did not agree to the matter proceeding in his absence, but that, if his safety was not guaranteed, he would consent to the matter proceeding with him appearing by videolink; (g) the matter in fact proceeded in his absence; and (h) King J had reserved her decision.
63 SA exhibited transcript of the hearing of 17 October 2013 to her affidavit. It showed in a number of respects that her affidavit was incomplete and that it distorted what occurred. But ultimately nothing turned on it. The short point was that King J issued an arrest warrant in circumstances where LS had gone overseas and had unequivocally stated that he would not return except if the Court guaranteed his safety from a supposed threat of injury or death at its hands.
64 Varindarjit Singh, a solicitor employed by the Victorian Government Solicitor, affirmed an affidavit on 22 July 2014. Exhibited thereto was a copy of the transcript of the hearing before King J on 14 April 2014, on which occasion her Honour granted leave to amend the originating motion to allege further contempts and issued the new arrest warrant which did not admit of the prospect of admission of LS to bail if it happened that he returned to Australia and was arrested. Her Honour's expressed concern was with an escalating level of foreshadowed violence in emails apparently emanating from LS.
65 The Court's enquiries revealed that King J had not yet delivered judgment in the contempt application.
66 It was not in issue on 23 February 2015 that LS remained overseas, and thus that the arrest warrant had not been executed.
67 Finally, we should refer to the email which we mentioned at [50] above. Counsel instructed by SA, one of the recipients of the email, did not suggest other than that LS was its author. To the contrary. The email appears, prima facie, to contain threats to kill judges. Its text is interspersed with images of multiple severed heads.
68 A court has jurisdiction in some circumstances to dismiss a matter without adjudication on the merits. We need not canvass the circumstances where such orders have been made. By our reference to the 'conduct' of LS in paragraph 3 of the February 2015 orders, we were intending to leave open the question whether one or more of the facts that - (a) LS is the subject of an unexecuted arrest warrant issued by a judge of the Court, (b) he recently, as it appears, seriously scandalised the Court, or (possibly) (c) he has been absent from Australia for a prolonged period and shows no sign of returning, give reason why the Court should dismiss any further application LS might make to challenge the declaration, without adjudication on the merits.
69 On 23 February 2015, by contrast with the position which his client took before Williams J, counsel for the Attorney applied for costs. In the disorganised circumstances which obtained - they raised the question, inter alia, against whom such an order might have been made - we exercised our discretion not to award costs. But it should not be assumed that the same position would obtain in the event that LS instituted, but was unsuccessful in, a fresh challenge to the declaration.
70 Counsel appearing for SA made, in our view, good quality written and oral submissions. Counsel did so pro bono, and without the assistance of an instructing solicitor. The submissions sought to agitate not only the preliminary issues which we needed to decide on 23 February, but also reasons why an extension of time for leave to appeal should be granted, and why leave to appeal against the declaration should be granted, including the merits of the appeal. The fact that we did not need to address the latter does not mean that we would not have been assisted by those submissions had the matter gone so far. We were grateful for the assistance of counsel.
[1] Constituted by Ashley and Mandie JJA.
[2] A-G (Vic) v Slaveski [2014] VSC 48 ('Reasons').
[3] Transcript of Proceedings, A-G (Vic) v Slaveski (Supreme Court of Victoria, S CI 2012 05803, Williams J, 21 June 2013) 234-5 ('Transcript').
[4] See for example Slaveski v Victoria [2010] VSC 441.
[7] Footnotes 4-7 are footnotes to the judge's reasons. We add that the reference to 'five weeks' in [12] of her Honour's reasons was inaccurate. But nothing turns on it.
[8] See Slaveski v Victoria [2009] VSC 423; (2009) 25 VR 160.
[9] Kay v A-G (Vic) [2000] VSCA 176; (2000) 2 VR 436, 437-8 ('Kay').
[10] Not 'applicant'. But that is the least of the problems.
[11] In a later affidavit, she deposed that he left Australia on 19 September. Nothing turned on the difference.
[12] An affidavit apparently sworn by LS on 6 May 2014 seems to indicate that he was then in Macedonia. The affidavit is one of the exhibits to SA's third affidavit of 7 May 2014.
[13] SA acting for him in attending to filing and service.
[15] Deposed to in paragraph 9 of her second affidavit sworn 7 May 2014. It is unnecessary to pass upon the question whether that explanation might be accepted.
[16] Although counsel explained the intention of the two summonses in this way, their form was puzzling. Only in the amendment summons was application made for appointment of SA as litigation guardian of LS. But in the end, nothing turns on the matter. We have treated the purpose of the summonses as being that stated by counsel.
[18] As explained in the broad by Smart J in Blake v Norris (1990) 20 NSWLR 300, 306. See also the observations of Chernov JA in Kay [2000] VSCA 176; (2000) 2 VR 436, 446 [27].
[19] Which the Attorney's solicitor described, in an email dated 4 September 2013 sent to her Honour's associate, copied to SA and to senior counsel who had expressed a willingness to act, as 'the vexatious litigant application', identifying it further by the file number in the Trial Division.
[20] [2000] VSCA 176; (2000) 2 VR 436, 447 [29] and 446 [27].
Slaveski
Attorney-General
(2000) 2 VR 436
(1990) 20 NSWLR 300
(2009) 25 VR 160