Slavich v Judicial Conduct Commissioner

[2013] NZHC 2025

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CIV-2013-404-003335 [2013] NZHC 2025

BETWEEN

JOHN KENNETH SLAVICH

Applicant

AND

JUDICIAL CONDUCT COMMISSIONER

First Respondent

MARK LESLIE SMITH COOPER and CHRISTOPHER HOLDEN TOOGOOD

Second Respondent

Hearing:	On the papers
Judgment:	9 August 2013

JUDGMENT OF COURTNEY J

This judgment was delivered by Justice Courtney on 9 August 2013 at 4.30 pm

pursuant to R 11.5 of the High Court Rules Registrar / Deputy Registrar Date………………………..

SLAVICH v JUDICIAL CONDUCT COMMISSIONER & ORS [2013] NZHC 2025 [9 August 2013]

[1]      Mr Slavich was declared a vexatious litigant under s 88B Judicature Act

Following that declaration he was refused leave to continue proceedings which had been considered in the course of the s 88B application. Mr Slavich complained to the Judicial Conduct Commissioner about the decisions of Toogood and Cooper JJ declaring him a vexatious litigant and of Cooper J refusing him leave to continue proceedings. The Judicial Conduct Commissioner dismissed Mr Slavich’s complaints.

[2] Mr Slavich then sought leave to commence judicial review proceedings in respect of the Commissioner’s decision. I refused leave on the ground that I was not satisfied, as required by s 88B(2), that the proposed proceeding was not an abuse of process and that there was a prima facie ground for the proceeding.2 Mr Slavich has now applied for an order recalling my judgment.

[3] He asserts that the recall application  meets  the  criteria  in  Horowhenua County v Nash (No 2), of there being a “very special reason that justice” requires the judgment to be recalled.3 In Erwood v Maxted the Court of Appeal set out guidelines to be followed when a party seeks the recall of a judgment in a civil proceeding.4 In relation to the third category of cases in which a judgment may be recalled under

Horowhenua County, the Court of Appeal has also approved the following statement made in Faloon v Commissioner of Inland Revenue:5

While the third category is not defined with particularity in the judgments, it is quite clear that the discretion to recall must be exercied with circumspection and it must not in any way be seen as a substitute for appeal. In particular, there are some things that it can be said the power to recall does not extend to. It does not extend to a challenge of any substantive findings on fact and law in the judgment. It does not extend to a party re- casting arguments previously given and re-presenting them in a new form. It does not extend to putting forward further arguments that could have been raised at the earlier argument but were not.

[4]      The very special reasons asserted to exist are that:

1 Attorney-General v Slavich [2013] NZHC 627.

2 Slavich v Judicial Conduct Commissioner & Ors [2013] NZHC 1688.
3 Horowhenua County v Nash (No 2) [1968] NZLR 632 (NZSC).

4 Erwood v Maxted (2010) 20 PRNZ 466 (CA), reversed by Erwood v Maxted [2011] NZSC 23 but without any commment on the guidelines set out by the Court of Appeal.

5 Faloon v Commissioner of Inland Revenue (2006) 22 NZCC 19,832 (HC) at [13].

(a)Because of s 88(B)(3) Judicature Act 1908, Mr Slavich has no right of appeal against the decision declining leave;

(b)I misapprehended the s 88B leave application issue and basis of complaint issue to the Judicial Conduct Commissioner;

(c)I failed to apply my mind to the issue raised in the leave application or the proposed proceedings;

(d)The issue that I either misapprehended or failed to apply my mind to was that the declaration that Mr Slavich is a vexatious litigant was claimed to have been obtained by deliberate dishonesty or fraud;

(e)I misapprehended that the proposed judicial review was of a decision by the Commissioner on a complaint about a judicial decision, when it was a proposed review of the Commissioner failing to conduct a proper statutory investigation.

[5] I do not accept that a special reason does exist that would justify either granting Mr Slavich leave to apply to have my judgment recalled or actually recalling the judgment.

[6] In my decision 3 July 2013 I specifically noted Mr Slavich’s allegation that Cooper and Toogood JJ deliberately failed to take relevant evidence into account. That assertion is essentially the basis for various other allegations of misconduct that Mr Slavich makes against the Judges, and is also the basis for the proposed judicial review of the Commissioner’s decision to dismiss Mr Slavich’s complaints.

[7]  The main thrust of Mr Slavich’s complaint seems to be that my conclusion that there was no prima facie ground for judicial review against the Judicial Conduct Commissioner’s decision was wrong because it assumed that it focuses on the re- litigation of issues determined by Cooper and Toogood JJ. He asserts that judicial review proceedings were directed towards an allegation that the Judicial Conduct Commissioner   obscured   the   Judge’s   fraud   by   failing   to   conduct   a   proper

investigation i.e. it was not the subject matter of their determination which he sought to have addressed, but their alleged perversion of the course of justice.

[8] Further, Mr Slavich asserts that I wrongly treated  the  subject  matter  of proposed judicial review proceedings as a judicial decision when it was not a judicial decision but, rather, a personal decision by the Judges. Mr Slavich asserts that the Judges made a personal decision to not write a transparent decision, which is the subject of his complaint.

[9] I do not accept these assertions or Mr Slavich’s general approach. Whilst misconduct of a judge in reaching a decision can be the subject of a complaint as distinct from the judgment given, the essential complaint about the decision  to declare Mr Slavich a vexatious litigant is that the Judges failed to properly consider the matter before them. That is properly the subject of an appeal. A collateral attack on the decision through the assertion of an improper motive by the Judge in failing to properly consider the issue before him or her does not change that fact.

[10] The essential allegation or complaint against the Commissioner is that the Commissioner failed to consider the facts relied on in relation to the alleged misconduct by the Judges. It is implicit in my conclusion that there was no prima facie ground for the judicial review proceedings that there was no prima facie ground on which to assert that the Commissioner had not dealt with the alleged misconduct.

[11] No special reasons exist which would justify granting Mr Slavich leave to apply to have my judgment recalled or would justify recall itself. I have not misapprehended Mr Slavich’s leave issue. The proposed judicial review of the Commissioner failing to conduct a proper statutory investigation is the same as a judicial review of the Commissioner’s decision dismissing Mr Slavich’s complaints. Following the guidelines in Erwood v Maxted, any further application seeking leave to recall this decision will be dealt with summarily.

P Courtney J