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‘Vexatious litigant’ takes boutique firm to court over defamation dispute
A highly litigious man who wanted to sue a Sydney newspaper for defamation over an alleged “war criminal” imputation has taken aim at the law firm that advised him he was unlikely to succeed.
Naomi Neilson
In June 2017, after Vito Zepinic was labelled a “‘vexatious litigant’ in every sense of the word” by NSW Supreme Court Justice Michael Pembroke for his 17 separate proceedings against one company, The Sydney Morning Herald wrote an article identifying him as “once the security chief for convicted Bosnian war criminal Radovan Karadzic”.
In new proceedings in the NSW Supreme Court, Mr Zepinic has alleged SLF Lawyers was professionally negligent and unsuccessfully sought damages in the amount of $323,445.06 for their legal services in the defamation matter and in an earlier matter.
Mr Zepinic’s then-solicitor, Margaret Pavey, gave evidence that she went through each of the allegations in the article with Mr Zepinic, and he confirmed “they were true”. She added he was of the view the article was naming him as a war criminal, “but she disagreed”.
The Supreme Court did clarify that while the statements in the article were true, Mr Zepinic did resign from the position as soon as he learnt of the war crimes and gave evidence against Mr Karadzic.
Although Ms Pavey said she believed there was little prospect of success, she agreed to brief a barrister, who confirmed this view.
Supreme Court Justice Stephen Rothman said the “kernel of his grievance” appeared to be he was not provided with a copy of the brief that was given to the barrister by the law firm.
“He categorically rejected the barrister’s advice as sound and claimed that had he been given the ‘right’ brief, he would never be able to come to that conclusion,” Justice Rothman said.
Despite this view, Justice Rothman said Mr Zepinic did not articulate what the barrister should have been provided with.
Mr Zepinic also took issue with what he alleged was the firm’s failure to represent him in a proceeding against the construction company and its failure to institute proceedings against a trustee in respect of the sale of a property and the conduct of two trust accounts.
This dispute relates to Mr Zepinic’s extensive legal action against the construction company following a 2004 clash over a property he and his wife had purchased. The court heard they were dissatisfied with the company’s work and refused to pay their fees.
By the time the SMH article was published, final orders were made against Mr Zepinic and vexatious orders were made. This was the subject of an unsuccessful appeal in the Court of Appeal.
Mr Zepinic alleged SLF never registered itself as his lawyer. While the firm accepted this allegation, it disputes that the firm was ever instructed to act for Mr Zepinic in the vexatious appeal proceedings.
This argument was also unsuccessful.
As part of the current proceedings, Mr Zepinic sought a motion containing 15 orders to set aside numerous judgments and orders of the court in previous proceedings, as well as annulling or invalidating certain transactions that have occurred since 2009.
SLF submitted it was “an impermissible attempt to relitigate the issues which the plaintiff is barred from pursuing, both by reason of the vexatious orders and also by res judicata and estoppel”.
The court found there was “force in that submission”.
Some motions were dismissed because they lay “squarely within the ambit of the vexatious orders”, while others raised an “additional jurisdictional issue” and were “against the principle of finality”.
The court also found three of the prayers “amounted to an attempt to appeal against the original decisions or to relitigate the same issue” relating to the disputes against the construction company.
“It is highly inappropriate to do so by way of a motion in a different proceeding which involves different parties, particularly given the exhaustive appeals proceedings which have already been initiated by the plaintiff against Chateau and subsequently dismissed, and the availability of proper avenues of appeal,” Justice Rothman said.
As for his evidence, Justice Rothman found Mr Zepinic’s evidence was “unconvincing”, and while he afforded some “latitude” because English was not his first language and he was unrepresented, the court ultimately found his evidence was unreliable.
“The level of inconsistency and prevarication that he displayed points to the conclusion that he had an extremely poor and selective recollection of key events,” Justice Rothman found.
The court found Mr Zepinic felt “aggrieved at the perceived injustice” in the treatment from the construction company, “and everything else was interpreted through that prism”.
Judgment was made in favour of the defendant, and the plaintiff’s motion was dismissed.
Naomi Neilson
Naomi Neilson is a senior journalist with a focus on court reporting for Lawyers Weekly.
You can email Naomi at:
