Slavich v Collins
[2023] NZHC 2488
•5 September 2023
IN THE HIGH COURT OF NEW ZEALAND HAMILTON REGISTRY
I TE KŌTI MATUA O AOTEAROA KIRIKIRIROA ROHE
CIV-2011-419-000463
[2023] NZHC 2488
BETWEEN JOHN KENNETH SLAVICH
Plaintiff
AND
DAVID BRIAN COLLINS CAMERON LESLIE MANDER CHERYL RAEWYN GWYN
MATTHEW SIMON RUSSEL PALMER
First DefendantsCHRISTOPHER FRANCIS FINLAYSON
Second DefendantREGISTRAR OF WELLINGTON DISTRICT COURT
Third DefendantATTORNEY-GENERAL
Fourth Defendant
Hearing: 12 July 2023 Appearances:
Plaintiff in Person
M L Dillon for the Fourth Defendant
Judgment:
5 September 2023
JUDGMENT (No.2) OF POWELL J
[Application to strike out application to recall]
This judgment was delivered by me on 5 September 2023 at 4.30 pm pursuant to
R 11.5 of the High Court Rules
…………………..
Registrar/Deputy Registrar
JOHN KENNETH SLAVICH v DAVID BRIAN COLLINS [2023] NZHC 2488 [5 September 2023]
[1] On 1 May 2012 Priestley J struck out proceedings brought by Mr Slavich which had sought relief in three broad areas (the judgment of Priestly J). The Judge summarised:1
The three broad areas in which the plaintiff seeks relief are:
(a)Restraining the first defendants from filing any further notices of stay under s 159 of the Summary Proceedings Act 1957 relating to various prosecutions which the plaintiff may bring
(b)Requiring the Attorney-General to seek advice from counsel, other than the first defendants and Crown Law, on the issue of whether or not there should be intervention under s 159;
(c)Preventing the Wellington District Court Registrar from accepting any documents filed by the defendants which breach the orders sought in
(a) and (b)
[2]His Honour concluded:2
Quite apart from the r 15.1(1)(a) limb, a proceedings can be struck out under r 15.1(1)(d) if it is otherwise an abuse of process. I consider both limbs are engaged. Scrutinising the three declarations (the originally pleaded orders) the plaintiff seeks (supra[4]) there is no basis on which this Court could properly restrain the first defendants from seeking stays in the District Court under s 159 of the Summary Proceedings Act 1957. The statement of claim and the background to related proceedings dealt with in the strike out judgment of Andrews J paint a picture of serial private prosecutions initiated by the plaintiff. As each one was stayed, similar to the appearance of Hydra’s heads, further prosecution would be launched. There is absolutely no basis in the pleadings or in the context of the plaintiff’s private prosecutions on which the application for the first declaration could succeed. The underlying factual matrix for both the private prosecutions and this proceedings depends solely on an aspect of the plaintiff’s 2006 criminal trial. That aspect has been dealt with exhaustively by appellate courts and is at an end.
With regard to the second declaration sought, for obvious constitutional reasons this Court would not attempt to order or direct the Attorney-General as to the source of his legal advice. Nor on the basis of either the pleadings or the factual context is there any prospect of this Court directing the Registrar of the Wellington District Court from filing a further stay of proceedings.
I am thus satisfied that, in terms of r 15.1(1)(a) no reasonably arguable cause of action is disclosed. Furthermore, focusing on r 15.1(1)(d), I am firmly of the view that this proceeding is an abuse of process. The plaintiff has advanced a beguiling argument that he is not mounting a collateral attack on his 2006 conviction. Rather he is submitting that he is trying to expose and sanction improper conduct on the part of the Hamilton Crown Solicitor and senior Crown Law officers. This reconstruction of the criminal process in
1 Slavich v Collins [2012] NZHC 856 at [4].
2 At [20]–[22] (footnote omitted).
which the plaintiff was involved is regrettably a distortion and, for the reasons set out in this judgment, is an edifice based on foundation stones which have been rejected by appellate courts. The law and public policy do not permit those matters to be revisited.
[3] The judgment was not appealed by Mr Slavich. Instead some 10 years later Mr Slavich has applied to recall the judgment of Priestley J. In response the Attorney-General has applied to strike-out Mr Slavich’s application for recall. Mr Dillon submitted on behalf of the Attorney-General that the application should be struck out as an abuse of this Court’s processes and attempting to relitigate matters previously determined against Mr Slavich, and that there is otherwise no proper basis for any recall.
[4] In response, Mr Slavich submitted that the recall application had been made because fresh evidence had come to light. The evidence Mr Slavich relies on consists of two affidavits sworn in 2013, one by Lynda Susan Lee, a legal executive at Crown Law, while the other is from Ross Douch, at the time the Crown Solicitor in Hamilton and the prosecutor in Mr Slavich’s criminal trial. It appears from Mr Slavich’s submissions that he considers this evidence calls into question Mr Slavich’s convictions on fraud charges, entered by Heath J in 2006.3
[5] Mr Slavich appears to also rely on the fact that he has taken his criminal case to the Criminal Cases Review Commission although he is yet to receive any determination. Finally, Mr Slavich has noted that his objective in applying for recall of the judgment of Priestley J is to have the Attorney-General agree to enter confidential settlement negotiations on all matters relating to Mr Slavich’s conviction-related Court decisions.
Discussion
[6]As Mr Dillon submitted, pursuant to:
… Rule 7.42A of the High Court Rules 2016, a judge may, on a judge’s own initiative, make an order under r 15.1 striking out an interlocutory application where that application is plainly an abuse of process. Rule 15.1(1) provides that a claim (or applying r 7.42A, an interlocutory application) can be struck out if it is an abuse of the Court’s processes under one of the grounds in r
3 R v Slavich HC Hamilton CRI 2006-419-89, 12 October 2006.
15.1(1)(b)-(d). This requires an element of impropriety and misuse of the Court’s processes,4 and includes attempting to relitigate matters that have already been determined.5
The Court also has an inherent jurisdiction to strike out an interlocutory application.6 The jurisdiction “stems from the Court’s general jurisdiction to control its own processes and ensure that its powers are not misused.7
[7] Having read the material filed by Mr Slavich and discussed his application at the hearing I have no hesitation in concluding the application to recall is a clear abuse of process, whether considered in terms of rr 7.42A or 15.1 of the High Court Rules 2016 and/or this Court’s inherent jurisdiction, and must be struck out.
[8] First, I accept Mr Dillon’s submission that not only is the evidence of Ms Lee and Mr Douch not fresh, it has absolutely nothing to do with the judgment of Priestley J, still less any application to recall that judgment. At the very least fresh evidence must meet the test for evidence in terms of s 7 of the Evidence Act 2006, as otherwise it is inadmissible. In this case it is clear that the issues addressed by Ms Lee and Mr Douch, concerning evidential issues at Mr Slavich’s criminal trial, and sworn in the context of proceedings determining whether Mr Mr Slavich was a vexatious litigant,8 are simply not relevant to the matters determined by Priestley J. The judgment of Priestley J turned on the matters set out at [2] above: the jurisdiction of the High Court to prevent the filing of stay applications by solicitors acting for the Crown and restricting whom the Attorney-General might obtain legal advice from; and an order consequential on the other two. As a result, whatever the merits of Ms Lee and/or Mr Douch’s affidavits in other contexts they are manifestly irrelevant and therefore inadmissible in the present proceedings.
[9] Given the obvious lack of relevance of the evidential material relied upon by Mr Slavich it is perhaps unsurprising that nothing in Mr Slavich’s submissions identifies any issue of any type with the judgment of Priestley J, or any submission
4 The grounds were summarised by the Court of Appeal in Commissioner of Inland Revenue v Chesterfields Preschools Ltd [2013] NZCA 53, [2013] 2 NZLR 679 at [89].
5 Collier v Butterworths of New Zealand Ltd (1997) 11 PRNZ 581 (HC) at 586.
6 Clear Communications Ltd v Telecom Corporation of New Zealand Ltd (1999) 14 PRNZ 477 (HC) at 481.
7 At 481, citing Black v Taylor [1993] 3 NZLR 403 (CA).
8 Attorney-General v Slavich [2013] NZHC 627 at [174].
that the test for recall in Horowhenua County v Nash (No. 2)9 had even been considered, let alone met.
[10] Instead, noting Mr Slavich’s submissions are extremely difficult to follow, it is tolerably clear that Mr Slavich’s focus is on his wrongful conviction on the six fraud charges by Heath J and the subsequent dismissals of his appeals by both the Court of Appeal10 and the Supreme Court, 11 leaving him with no avenue to challenge those convictions other than his application to the Criminal Cases Review Commission.
[11] As a result it is clear the recall application appears to be simply a vehicle for Mr Slavich to discuss issues relating to his convictions for the purpose of facing pressure on the Attorney-General to enter, as the recall application itself provides:
confidential settlement negotiations to deal with all of the misfeasance in public office associated with the criminal and civil proceedings on this evidence matter and to put in place corrective measures for the future
Far from supporting Mr Slavich’s application for recall such a collateral purpose is in and of itself a not insignificant abuse of this Court’s process.
Decision
[12]Mr Slavich’s application for recall of the judgment of Priestley J is struck out.
[13] The Attorney-General is entitled to costs on a 2B basis as sought. In the event that there is any dispute on the quantum of costs I will determine the issue following the filing of memoranda.
Powell J
9 Horowhenua County v Nash (No. 2) [1968] NZLR 632 (SC) at 633.
10 R v Slavich [2009] NZCA 188.
11 Slavich v R [2009] NZSC 87; Slavich v R [2011] NZSC 103; Slavich v R [2016] NZSC 99; and
Slavich v R [2020] NZSC 34.
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