Slavich v Attorney-General
[2020] NZCA 32
•28 February 2020 at 11.30 am
| IN THE COURT OF APPEAL OF NEW ZEALAND I TE KŌTI PĪRA O AOTEAROA |
| CA772/2018 [2020] NZCA 32 |
| BETWEEN | JOHN KENNETH SLAVICH |
| AND | ATTORNEY-GENERAL |
| Hearing: | 17 February 2020 |
Court: | French, Brown and Goddard JJ |
Counsel: | Applicant in person |
Judgment: | 28 February 2020 at 11.30 am |
JUDGMENT OF THE COURT
The application for an extension of time to appeal is declined.
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REASONS OF THE COURT
(Given by French J)
Mr Slavich applies under r 29A of the Court of Appeal (Civil) Rules 2005 for an extension of time to bring an appeal. The background is as follows.
In March 2013, the High Court issued a judgment granting an application to make Mr Slavich a vexatious litigant under s 88B of the Judicature Act 1908.[1] The judgment relied on a series of proceedings initiated by Mr Slavich which the Court considered vexatious. Most of the proceedings in question had their genesis in persistent and unsuccessful attempts by Mr Slavich to overturn his 2006 convictions for fraud and forgery.
[1]Attorney-General v Slavich [2013] NZHC 627.
Mr Slavich applied to have the judgment making him a vexatious litigant recalled. That application was dismissed in a formal minute by Toogood J. Mr Slavich then sought recall of the minute on the grounds that Toogood J had a conflict of interest and should have recused himself. Toogood J then directed the High Court Registry not to accept for filing any further application by Mr Slavich in the proceeding. Mr Slavich did not file a further application but he sent correspondence to the Court seeking recall of the order declaring him a vexatious litigant.
The matter was referred to the then Chief High Court Judge, Winkelmann J, who issued a minute dated 24 March 2015. The minute set out a brief background and stated:
The Court does not receive applications of this nature by way of correspondence. The application is in any case misconceived. The proceeding is at an end. No further applications or correspondence are to be received in respect of it. Any further correspondence received by the Court from Mr Slavich on this file will not be responded to.
Mr Slavich now wishes to appeal Winkelmann J’s direction. He submits her minute was fundamentally flawed because it failed to mention his right to file a recall application on the grounds of new evidence. The time for filing an appeal against the direction expired on 23 April 2015. Mr Slavich did not file his appeal until 13 December 2018.
The delay of three years, eight months is by any standard exceptionally long. There is no reasonable explanation for it. Mr Slavich told us the only explanation was “inadvertence”. The respondent has suffered no prejudice other than that inherent in the delay. As for the merits of the appeal, we are mindful of the need for caution in expressing a view,[2] but are satisfied this is one of those cases where the appeal does not involve a matter of public interest and is clearly hopeless.
[2]As emphasised by the Supreme Court in Almond v Read [2017] NZSC 801, [2017] 1 NZLR 80 at [37].
We acknowledge the existence of authority that a court can exercise its inherent jurisdiction to recall a judgment if fresh evidence not previously available has come to light which is material to the outcome of the case.[3] It is however quite another matter as to whether the failure to mention this in a minute is capable of being grounds for quashing Winkelmann J’s direction, especially in circumstances where Mr Slavich did not have fresh evidence to put before the High Court at the time and still does not have any fresh evidence now.
[3]The relevant authorities were reviewed in Herron v Wallace [2016] NZHC 2426.
The “fresh evidence” on which Mr Slavich seeks to rely now is two paragraphs of a report dated 6 June 2018 written by the Ministry of Justice for the purposes of an application Mr Slavich has made for the exercise of the royal prerogative. The report is an analysis of the trial evidence. It is not itself evidence. Nor is the fact the report undertook the analysis fresh evidence. It was an analysis which Mr Slavich himself told us can be done in 15 minutes and when the Ministry report writer undertook it, the outcome was not favourable to Mr Slavich.
It follows that the proposed appeal would be futile.
We conclude, weighing up all the relevant factors, that the interests of justice do not favour granting an extension of time.
The application for an extension of time to appeal is accordingly declined.
The respondent did not seek costs on the application and we therefore make no order as to costs.
Finally, for completeness, we record that the respondent asked us to determine an issue which has arisen in the High Court about the correct expiry date of vexatious litigant orders made under the Judicature Act. The issue turns on the interpretation of the transitional provisions of the Senior Courts Act 2016 and is an issue on which there are conflicting High Court authorities.[4]
[4]Siemer v New Zealand Law Society [2019] NZHC 3075; Siemer v Auckland High Court [2019] NZHC 3393; and Rafiq v Whata J [2019] NZHC 1193.
It is an important issue. However, we consider it better for it to be resolved in a case where it will be determinative and where the Court has the benefit of a legally qualified contradictor. In this case, whether Mr Slavich is or is not still a vexatious litigant is not germane to the application. The only reason Mr Slavich needs leave to appeal is because he filed his appeal out of time. The minute issued by Winkelmann J was issued in the vexatious litigation proceeding itself and in relation to that proceeding Mr Slavich has never required leave to appeal on account of his status as a vexatious litigant.
Solicitors:
Crown Law Office, Wellington for Respondent
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