Slavich v Attorney-General - [2013] NZCA 356

IN THE COURT OF APPEAL OF NEW ZEALAND

CA165/2013
[2013] NZCA 356

BETWEEN	JOHN KENNETH SLAVICH Appellant
AND	THE ATTORNEY-GENERAL Respondent

CA197/2013
AND BETWEEN	JOHN KENNETH SLAVICH Appellant
AND	THE ATTORNEY-GENERAL Respondent

Counsel:

Appellant in person
P Gunn for Respondent

Judgment:

(On the papers)

8 August 2013 at 10.15 am

JUDGMENT OF HARRISON J
(Review of Registrar’s decision on security for costs)

AThe application for review of the Registrar’s decision is declined.
B The appellant must give security for costs in the sum of $5,880 in this Court within 20 working days of this judgment.
CThere is no order for costs on this application.

____________________________________________________________________

REASONS

Introduction

John Slavich has filed appeals in this Court, first, in CA165/2013 against a judgment delivered by Toogood J in the High Court at Auckland[1] and, second, in CA197/2013 against a judgment delivered by Cooper and Toogood JJ in the same court.[2]
[1]Attorney-General v Slavich HC Auckland CIV-2012-404-6353, 8 March 2013.
[2]Attorney-General v Slavich [2013] NZHC 627.
Mr Slavich subsequently filed applications in this Court for waivers of payment of security for costs on both appeals. In a decision delivered on 21 June 2013 the Registrar allowed Mr Slavich’s applications in part. While she was not satisfied that Mr Slavich had established exceptional circumstances justifying waivers for both appeals, she accepted that Mr Slavich should not be required to give security of $5,880 for each of the two appeals (a total of $11,760). Instead, she directed Mr Slavich to pay one amount of $5,880 as security for costs for both appeals.
Mr Slavich has applied to review the Registrar’s decision.

Principles

As Mr Slavich accepts, the test when considering an application for waiver of payment of security for costs is whether the interests of justice require that course.[3] Mr Slavich carries the burden of demonstrating exceptional circumstances which justify a dispensation from the statutory obligation to give security.
[3]Easton v Broadcasting Commission [2009] NZCA 252, (2009) 19 PRNZ 675; Blanshard v The National Mutual Life Association of Australasia Ltd HC Auckland CIV-2001-404-1961,
In conducting the relevant inquiry, relevant factors include whether Mr Slavich’s appeal rights will be rendered nugatory if dispensation is not granted; impecuniosity if established (but not necessarily a decisive factor); and the merits of the appeal.
There is another wider factor relevant to the interests of justice. On the one hand is, as Mr Gunn for the Attorney-General accepts, Mr Slavich’s constitutional right of access to the courts. Balanced against that is the equally important factor of freeing defendants from the considerable burden of groundless litigation.[4] The Attorney-General should not be put to the expense of arguing an appeal if it has no merit.

Decision

[4]Brogden v Attorney-General [2001] NZAR 809 (CA) at [20].

Mr Slavich has not satisfied me that the Registrar erred in concluding that the interests of justice did not require waiver of payment of security of costs on one appeal, for these reasons.
First, Mr Slavich submits that an obligation to…

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 [2013] NZCA 356
Case: [2013] NZCA 356
Decision Date: 8 August 2013 at 10.15 am

CaseChat Overview and Summary

John Kenneth Slavich, the appellant, appealed against decisions made by the Registrar of the Court of Appeal of New Zealand regarding the security for costs in two separate appeals. The appeals in question pertain to judgments delivered by the High Court at Auckland. The first appeal was against a judgment delivered by Toogood J in the High Court at Auckland, and the second was against a judgment delivered by Cooper and Toogood JJ in the same court. Mr Slavich applied for waivers of payment of security for costs for both appeals, but the Registrar allowed the applications in part. The Registrar concluded that Mr Slavich should not be required to give security of $5,880 for each of the two appeals, but instead, he should pay one amount of $5,880 as security for costs for both appeals. Mr Slavich subsequently applied to review the Registrar’s decision.

The legal issue before the court was whether the Registrar erred in concluding that the interests of justice did not require a waiver of payment of security of costs on both appeals. The court considered whether Mr Slavich had established exceptional circumstances justifying a dispensation from the statutory obligation to give security. The court examined the relevant factors in determining whether the interests of justice required a waiver, including whether Mr Slavich’s appeal rights would be rendered nugatory if dispensation was not granted, impecuniosity if established, and the merits of the appeal. The court also considered the constitutional right of access to the courts and the need to free defendants from the considerable burden of groundless litigation.

The court declined Mr Slavich’s application for review of the Registrar’s decision. The court found that Mr Slavich had not established exceptional circumstances justifying a waiver of payment of security for costs on both appeals. The court found that Mr Slavich had failed to provide any verified evidence of his financial circumstances or his inability to pay. The court also found that Mr Slavich had failed to show that his appeals had any merit, as the High Court had already granted the Attorney-General’s application under s 88B of the Judicature Act 1908 and made various prohibitory orders against Mr Slavich on the grounds that he had persistently and without any reasonable cause instituted vexatious legal proceedings. The court concluded that the many grounds raised in Mr Slavich’s application to review did not raise any real prospect of a successful appeal on the merits. The court ordered Mr Slavich to give security for costs in the sum of $5,880 within 20 working days of the judgment. There was no order for costs on the application.

Orders