Slavich v Collins

[2023] NZHC 1810

IN THE HIGH COURT OF NEW ZEALAND HAMILTON REGISTRY

I TE KŌTI MATUA O AOTEAROA KIRIKIRIROA ROHE

CIV-2011-419-000463

[2023] NZHC 1810

BETWEEN

JOHN KENNETH SLAVICH

Plaintiff

AND

DAVID BRIAN COLLINS CAMERON LESLIE MANDER CHERYL RAEWYN GWYN

MATTHEW SIMON RUSSEL PALMER
First Defendants

CHRISTOPHER FRANCIS FINLAYSON
Second Defendant

REGISTRAR OF WELLINGTON DISTRICT COURT
Third Defendant

ATTORNEY-GENERAL

Fourth Defendant

Hearing:	On the papers at Hamilton
Date of Minute:	11 July 2023

JUDGMENT OF POWELL J

[Review of Registrar’s Decision]

This judgment was delivered by me on 11 July 2023 at 4.45 pm pursuant to

R 11.5 of the High Court Rules

…………………..

Registrar/Deputy Registrar

JOHN KENNETH SLAVICH v DAVID BRIAN COLLINS [2023] NZHC 1810 [11 July 2023]

[1]                 Pursuant to r 2.11 of the High Court Rules 2016 the plaintiff, John Slavich, has sought a review of a decision by the Registrar of the High Court at Hamilton.

[2]                 Specifically on 4 July 2023 the Registrar declined to issue an order of subpoena in form G25 requested by Mr Slavich, that sought the attendance of the Honourable Paul Heath KC at the hearing of the application to strike Mr Slavich’s own application to recall judgment in these proceedings, which is scheduled to be heard on 12 July 2023.

[3]                 In making her decision the Registrar cited r 7.27 of the High Court Rules 2016 which provides that evidence in interlocutory applications is given by affidavit, unless a Judge accepts oral evidence.

[4]                 The Registrar’s decision was correct. Subpoenas are issued pursuant to r 9.52 of the High Court Rules 2016. Part of the High Court Rules deals with the evidence at trial. The hearing on 12 July 2023 is not the trial of this proceeding but rather an interlocutory application to strike out the proceedings made by the Attorney-General. As an interlocutory application r 7.27 of the High Court Rules provides that evidence is normally given by affidavit, although in special circumstances a Judge may accept oral evidence. It follows that Mr Slavich has no right to have a subpoena issued in the absence of seeking and obtaining leave to do so.

[5]                 More broadly, it is apparent from the timetable directions for the 12 July 2023 hearing that were issued by Venning J on 26 April 2023 it was not intended for any evidence to be filed by any party given the nature of the application. Instead Venning J directed the filing and service of submissions and set the application down for hearing.

[6]                 Finally, and for completeness it is noted that the subpoena requested by Mr Slavich makes it clear that Mr Heath was sought to be called in relation to his capacity as a judge of the High Court, particularly with regard to a 2006 trial over which he presided and what may or may not have occurred at that trial. Matters about which Mr Slavich wishes Mr Heath to give evidence include a minute issued by Mr Heath at the trial and the circumstances in which evidence was or was not received in the course

of that trial. Quite clearly pursuant to s 74(d) of the Evidence Act 2006 such evidence is not compellable and as a result a subpoena cannot be issued.

[7]                 Taking these matters together, the hearing on 12 July 2023 will proceed on the basis of the submissions filed by the parties. The application for review is dismissed.

Powell J