Slavich v Collins - [2012] NZHC 856

IN THE HIGH COURT OF NEW ZEALAND HAMILTON REGISTRY

CIV-2011-419-000463 [2012] NZHC 856

BETWEEN JOHN KENNETH SLAVICH Plaintiff

ANDDAVID BRIAN COLLINS, CAMERON LESLIE MANDER, CHERYL RAEWYN GWYN, MATTHEW SIMON RUSSELL PALMER
First Defendants

ANDCHRISTOPHER FRANCIS FINLAYSON Second Defendant

ANDREGISTRAR OF WELLINGTON DISTRICT COURT
Third Defendant

Hearing: 29 March 2012

Appearances: D N Soper for Defendants (Applicant) Plaintiff in person (Respondent)

Judgment: 1 May 2012

RESERVED JUDGMENT OF PRIESTLEY J

This judgment was delivered by me on 1 May 2012 at 4.00 pm pursuant to Rule 11.5 of the High Court Rules.

Registrar/Deputy Registrar

Date:………………………….

Counsel:
D N Soper, Crown Law, Wellington 6140. Email: david.soper@crownlaw.govt.nz

Copy to:
J K Slavich, Hamilton. Email: jks22@hotmail.com

SLAVICH V COLLINS & ORS HC HAM CIV-2011-419-000463 [1 May 2012]

[1] The respondents have applied to strike out the plaintiff’s proceeding. In essence the respondents submit that the plaintiff’s causes of action are meritless, constitute an abuse of process, and are a naked attack on other proceedings (both civil and criminal) which have been finally determined. Thus, in accordance with well-known principles which attach to strike out applications, the proceeding should be struck out.

The plaintiff ’s claim

[2] The statement of claim was filed in April 2011. It has subsequently been modified by an August 2011 amended statement of claim. Although the causes of action appear to be framed in terms of injunctive relief (various orders of a mandatory nature requiring the respondents to do certain things) the parties seem to have agreed that rather than require the plaintiff to re-plead, his causes of action should be treated as seeking three declarations.

[3] As is apparent from the intituling, the first defendants include the then Solicitor-General, the Deputy Solicitor-General, and two Crown Law solicitors. The second defendant is New Zealand’s Attorney-General. The third defendant is the Wellington District Court Registrar in whose court a number of informations (in the nature of private prosecutions) have been filed and stayed.

[4] 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).

Brief background

[5] The focus and origin of the plaintiff’s concerns are to be found in his conviction on six counts (generically involving forgery and dishonest use of documents) in October 2006. The plaintiff faced trial, along with others, before Heath J whose verdicts and reasons were delivered on 12 October 2006.1 The
plaintiff appealed unsuccessfully.2 Leave to appeal to the Supreme Court was

refused.3

[6] One of the plaintiff’s responses to his unsuccessful attempts to overthrow his convictions (he was imprisoned)…

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 Collins

Details

AGLC: Slavich v Collins [2012] NZHC 856
Case: [2012] NZHC 856
Decision Date: 1 May 2012

CaseChat Overview and Summary

The plaintiff, John Kenneth Slavich, brought a proceeding against the first defendants, comprising the then Solicitor-General, the Deputy Solicitor-General, and two Crown Law solicitors, the second defendant, New Zealand’s Attorney-General, and the third defendant, the Wellington District Court Registrar. The plaintiff sought three declarations, restraining the first defendants from filing further notices of stay, requiring the Attorney-General to seek advice from counsel on the issue of whether or not there should be intervention under s 159, and preventing the Wellington District Court Registrar from accepting documents filed by the defendants which breach the orders sought in (a) and (b). The defendants applied to strike out the plaintiff’s proceeding, contending that the plaintiff’s causes of action were meritless, constituted an abuse of process, and were a naked attack on other proceedings which had been finally determined.

The court considered the jurisdiction to strike out a proceeding, found in r 15.1 of the High Court Rules, which provides that the court may strike out all or part of a pleading if it discloses no reasonably arguable cause of action, defence, or case appropriate to the nature of the pleading, is likely to cause prejudice or delay, is frivolous or vexatious, or is otherwise an abuse of the process of the court. The court was satisfied that, in terms of r 15.1(1)(a), no reasonably arguable cause of action was disclosed. Furthermore, focusing on r 15.1(1)(d), the court was firmly of the view that this proceeding was an abuse of process. The plaintiff had advanced a beguiling argument that he was not mounting a collateral attack on his 2006 conviction. Rather, he was submitting that he was 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 which the plaintiff was involved was regrettably a distortion and, for the reasons set out in this judgment, was an edifice based on foundation stones which had been rejected by appellate courts.

The court held that the defendants’ strike out application must succeed. The plaintiff’s proceeding was struck out, and the defendants were entitled to costs. If the defendants wished to seek costs, they should file a short memorandum stipulating the amounts claimed and reasons therefore within 15 working days of the release of this judgment. The plaintiff was to file any written reply ten working days thereafter.

Orders