Slaveski v Rotstein & Associates [2013] FCA 1158

FEDERAL COURT OF AUSTRALIA

Slaveski v Rotstein & Associates [2013] FCA 1158 Citation: Slaveski v Rotstein & Associates [2013] FCA 1158

Parties: LJUPCO SLAVESKI v ROTSTEIN & ASSOCIATES PTY LTD TRADING AS ROTSTEIN COMMERCIAL LAWYERS

File number(s): VID 400 of 2013

Judge(s): PAGONE J

Date of judgment: 6 November 2013

Date of hearing: Heard on the papers

Place: Melbourne

Division: GENERAL DIVISION

Category: No catchwords

Number of paragraphs: 10

IN THE FEDERAL COURT OF AUSTRALIA VICTORIA DISTRICT REGISTRY GENERAL DIVISION VID 400 of 2013

BETWEEN: LJUPCO SLAVESKI

Appellant

AND: ROTSTEIN & ASSOCIATES PTY LTD TRADING AS ROTSTEIN COMMERCIAL LAWYERS

Respondent

JUDGE: PAGONE J DATE OF ORDER: 6 NOVEMBER 2013 WHERE MADE: MELBOURNE

THE COURT ORDERS THAT:

1. The appellant's application for adjournment of the hearing on 8 November 2013 is dismissed. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

IN THE FEDERAL COURT OF AUSTRALIA VICTORIA DISTRICT REGISTRY GENERAL DIVISION VID 400 of 2013

BETWEEN: LJUPCO SLAVESKI

Appellant

AND: ROTSTEIN & ASSOCIATES PTY LTD TRADING AS ROTSTEIN COMMERCIAL LAWYERS

Respondent

JUDGE: PAGONE J DATE: 6 NOVEMBER 2013 PLACE: MELBOURNE

REASONS FOR JUDGMENT 1 The appellant, Mr Ljupco Slaveski, seeks to have adjourned an appeal scheduled to be heard on Friday 8 November 2013. He made the request informally by email on 18 October 2013 but was informed that it would be treated as a formal request if confirmed by 24 October 2013 and all material filed by 31 October 2013. Both parties filed material by that date and neither party objected to accepting Mr Slaveski's request for an adjournment to be dealt with on the papers without separate oral hearing. 2 What Mr Slaveski wishes to adjourn his appeal of a decision of Judge Burchardt made on 15 May 2013. His Honour's decision arose from an application by Mr Slaveski made on 19 September 2012 to have set aside a bankruptcy notice which had been served on him dated 29 August 2012 by the respondent, Rotstein & Associates Pty Ltd trading as Rotstein Commercial Lawyers ("RCL"). That bankruptcy notice arose out of an order of Magistrate Lauritsen made 25 July 2011. That order had been the subject of unsuccessful appeals in the Supreme Court of Victoria and an unsuccessful application for special leave to appeal to the High Court of Australia. 3 Judge Burchardt dismissed Mr Slaveski's application as a clear case where the bankruptcy notice ought not to be set aside. His Honour considered the two issues raised by Mr Slaveski and rejected both. The first was whether or not the debt upon which the bankruptcy notice was founded was indeed owing. The second was whether, in any event, Mr Slaveski had a counterclaim equal to or exceeding the amount of the judgment debt that he could not have set up in any action or proceeding in which the judgment was obtained. Both matters were determined on the evidence against Mr Slaveski. His Honour found that the debt was owing and that any counterclaim (assuming it could be made out) had been raised in the proceedings in which the debt was in issue and that the claim (to the extent asserted by Mr Slaveski) had been abandoned. 4 Mr Slaveski's application for an adjournment is contained in an unsworn affidavit dated 30 October 2013. For present purposes I will accept the affidavit as if it had been sworn and will accept Mr Slaveski's statements that he has a fear of re-entering Australia. In saying that I should not be understood as accepting that his fear is well-founded but only that his statement of having a fear represents his subjective belief. 5 Mr Slaveski's reason for seeking an adjournment is, therefore, that he is not in Australia to conduct the appeal because he is fearful for his life to return back to Australia. His affidavit recounts facts which he put forward as explaining his fear and concluded in paragraph 12: "That is the reason I left the Country – Australia, and I am fearful for my life to return back to Australia, and for those reasons I ask the court to vacate the Trial [sic] date." Mr Slaveski does not, however, indicate when, if ever, he might be in a position to attend a hearing of his appeal. He gives no evidence about any steps taken to find alternative means of having the appeal conducted on his behalf and has made no attempts to investigate the possibility of him appearing by video link. His application for adjournment, therefore, identifies no basis upon which it might confidently be expected that the appeal would be heard in the near future, if ever. 6 On 23 May 2013 RCL filed a creditor's petition against Mr Slaveski in the Federal Circuit Court of Australia. The bankruptcy proceeding was adjourned on 30 August 2013 by order of Registrar Hetyey until after determination of the present appeal. The delay in the determination of the appeal, especially to its indefinite delay, creates a prejudice to the respondent which cannot be compensated by way of costs. 7 I am unable to accept Mr Slaveski's application for an adjournment of his appeal. A consequence of its refusal may be the dismissal of the appeal on Friday and that fact is something to be taken into account in favour of the application. Against that, however, is to be placed the indeterminate time that Mr Slaveski would need before the appeal could be re-listed. The facts he relied upon for seeking an adjournment could last indefinitely. There is nothing in his application to suggest that they would not last indefinitely. The respondent, as a litigant, is entitled to finality in legal proceedings and it too is entitled to have the determination of the matters in the appeal. What should also be weighed against the final determination of the appeal against Mr Slaveski if an adjournment is not granted is the apparent hopelessness of the appeal. Judge Burchardt's decision seems obviously correct on both points and nothing raised by Mr Slaveski in his current application beyond assertion undermine the correctness of his Honour's decision. Furthermore, the underlying dispute giving rise to the debt and any alleged counterclaim has already been ventilated and decided against Mr Slaveski by several judicial officers. 8 The history behind the debt and the counterclaim is set out in his Honour's reasons, the affidavit filed by RCL and in several published decisions of the Supreme Court of Victoria. In August 2007 RCL commenced proceedings in the Magistrates' Court of Victoria for recovery of unpaid legal fees and disbursements said to be owing, and found to be owing, by Mr Slaveski. The proceeding was listed on 15 different dates between January 2008 and July 2011. Magistrate Lauritsen ordered on 25 July 2011 that Mr Slaveski pay to RCL the sum of $100,000.00 plus costs of $17,516.00 and that Mr Slaveski's counterclaim be struck out. Those orders were unsuccessfully appealed to the Supreme Court of Victoria. An application by RCL to have the appeal dismissed was heard by Associate Justice Daly on 14 November 2011 and her Honour dismissed Mr Slaveski's appeal on 22 June 2012 on the grounds that Mr Slaveski had no arguable case on appeal. That decision was the subject of a further unsuccessful appeal heard on 3 September 2012 by Justice Kaye of the Supreme Court of Victoria when no appearance was made by Mr Slaveski. On 7 September 2012 Chief Magistrate Lauritsen dismissed an application by Mr Slaveski for a stay of the orders which had been made on 25 July 2011. On 12 September 2012 Mr Slaveski sought to have the decision of Justice Kaye set aside, a new hearing of the appeal of Associate Justice Daly's decision, and a further stay of the order which had been made on 25 July 2011. Justice Dixon heard and dismissed Mr Slaveski's summons in a reasoned decision after agreeing to hear the appeal from the decision of Associate Justice Daly. His Honour's decisions were the subject of an unsuccessful application for special leave to appeal to the Victorian Court of Appeal on 2 October 2012 which, in turn, was the subject of an unsuccessful application for special leave to appeal the decision to the High Court of Australia. 9 The underlying disputes between Mr Slaveski and RCL concern the existence of a debt and the possibility of a counterclaim. Those disputes have been agitated unsuccessfully against Mr Slaveski and I see no basis upon which there is any prospect upon which the appeal could succeed. 10 Accordingly, Mr Slaveski's application for an adjournment is refused. I certify that the preceding ten (10) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Pagone.