Slavich v Judicial Conduct Commissioner - [2012] NZCA 31

IN THE COURT OF APPEAL OF NEW ZEALAND

CA626/2011
[2012] NZCA 31

BETWEEN JOHN KENNETH SLAVICH
Applicant

AND JUDICIAL CONDUCT COMMISSIONER
First Respondent

AND PAUL HEATH
Second Respondent

Hearing: 7 February 2012

Court: Glazebrook, Wild and White JJ

Appearances: Applicant in Person
P Gunn for Respondents

Judgment: 22 February 2012 at 11 am

JUDGMENT OF THE COURT

AThe application for an extension of time within which to appeal is dismissed.
BThe applicant is to pay the respondents’ costs (one set of costs) for a standard application on a band A basis with usual disbursements.

____________________________________________________________________

REASONS OF THE COURT
(Given by Wild J)

Mr Slavich applies for an extension of time to appeal. His application is pursuant to r 29A of the Court of Appeal (Civil) Rules 2005. Mr Slavich wishes to appeal a judgment delivered by Andrews J on 14 July 2011.[1]
[1]Slavich v Judicial Conduct Commissioner HC Hamilton CIV-2010-419-975, 14 July 2011.
Mr Slavich appealed that judgment on 12 August 2011 — within time — but failed to enclose the required filing fee with his notice of appeal. Consequently, the Court did not accept his notice of appeal.
Mr Slavich applied on 22 September 2011 for an extension of time within which again to file his appeal. He claimed that his failure to proffer the filing fee was a “simple error” on his part, with no resulting prejudice to the respondents.
Mr Slavich now requires an extension of time to appeal and the well established principles under r 29A apply. Of those principles, the length of the delay here is not of concern, and we are prepared to accept that not including the filing fee was a simple mistake. Mr Gunn does not contend that any real prejudice has resulted to the prospective respondents from Mr Slavich’s delay.
However, in our view Mr Slavich’s proposed appeal lacks any merit and has no prospect of success. The seven separate applications for judicial review and the proceeding alleging misfeasance in public office that Andrews J struck out in her 14 July 2011 judgment were all challenges to the criminal processes, including name suppression, that culminated in Mr Slavich’s conviction for fraud on 12 October 2006 following a trial before a Judge alone. Mr Slavich unsuccessfully appealed his conviction to this Court.[2] The Supreme Court subsequently refused Mr Slavich leave to appeal.[3]
[2] R v Slavich [2009] NZCA 188.
[3] Slavich v R [2009] NZSC 87.
It became apparent from Mr Slavich’s oral submissions to us that the focus of his proposed appeal would be the admissibility of the evidence of the witness called, at the time of Mr Slavich’s trial, Ms Carolyn Gibbs (now Mrs Calder). The admissibility of Ms Gibbs’ evidence was comprehensively argued by Mr Slavich before this Court on his appeal against conviction. He was represented on that appeal by Mr J Haigh QC, with him Mr B H McCarthy. Neither were counsel for Mr Slavich at his trial. This Court’s judgment deals with…

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.

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Details

Case: [2012] NZCA 31
Decision Date: 22 February 2012

CaseChat Overview and Summary

In the Court of Appeal of New Zealand, John Kenneth Slavich sought an extension of time to appeal against a judgment that dismissed his challenges to the criminal processes that led to his conviction for fraud. The appeal was dismissed by Glazebrook, Wild and White JJ. The primary issue before the court was whether Mr Slavich should be granted an extension of time to appeal against the dismissal of his multiple challenges to the criminal processes that culminated in his conviction, which had already been upheld by higher courts.

The court found that while the delay in filing the notice of appeal and the omission of the filing fee could be considered a simple error, the proposed appeal lacked merit and had no prospect of success. The court highlighted that the challenges to the criminal processes had been comprehensively addressed and dismissed by the lower courts, and that Mr Slavich had unsuccessfully appealed his conviction to the Court of Appeal and the Supreme Court. The court further noted that the focus of the proposed appeal would be the admissibility of a witness's evidence, which had already been ruled upon by the Court of Appeal.

The Court of Appeal concluded that there was no point in granting an extension of time for a hopeless appeal. The application for an extension of time was dismissed, and Mr Slavich was ordered to pay the respondents' costs.

Orders