Slavich v Attorney-General - [2020] NZCA 32

IN THE COURT OF APPEAL OF NEW ZEALAND

I TE KŌTI PĪRA O AOTEAROA

CA772/2018
[2020] NZCA 32

BETWEEN	JOHN KENNETH SLAVICH Applicant
AND	ATTORNEY-GENERAL Respondent

Hearing:	17 February 2020
Court:	French, Brown and Goddard JJ
Counsel:	Applicant in person P J Gunn and V McCall for Respondent
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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Slavich v Attorney-General

Details

AGLC: Slavich v Attorney-General [2020] NZCA 32
Case: [2020] NZCA 32
Decision Date: 28 February 2020 at 11.30 am

CaseChat Overview and Summary

In the case of Slavich v Attorney-General, the applicant, John Kenneth Slavich, sought an extension of time to appeal a decision made by Winkelmann J in the High Court. The High Court had previously declared Mr Slavich a vexatious litigant, and Mr Slavich had applied to have this judgment recalled. The application for recall was dismissed, and subsequently, Mr Slavich sought to appeal the dismissal of his recall application. However, the appeal was filed outside the prescribed time limit, necessitating the application for an extension of time to appeal.

The central legal issue in this case was whether the Court of Appeal should grant an extension of time for Mr Slavich to appeal the decision of Winkelmann J. The applicant argued that the minute issued by Winkelmann J was fundamentally flawed as it failed to mention his right to file a recall application on the grounds of new evidence. The respondent contended that the delay in filing the appeal was exceptionally long and without reasonable explanation, and that the appeal was clearly hopeless.

The Court of Appeal, after considering the relevant factors, concluded that the interests of justice did not favour granting an extension of time. The Court found that the appeal was hopeless as the alleged "fresh evidence" relied upon by Mr Slavich was not actually fresh evidence and was not favourable to him. The Court also noted that the issue of the correct expiry date of vexatious litigant orders was not germane to the application and should be resolved in a case where it would be determinative.

The Court declined the application for an extension of time to appeal. No order was made as to costs, as the respondent did not seek costs on the application.

Orders