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…

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: [2013] NZHC 2025
Decision Date: 9 August 2013

CaseChat Overview and Summary

In the case of Slavich v Judicial Conduct Commissioner, the applicant, Mr. John Kenneth Slavich, sought to challenge the decision of the Judicial Conduct Commissioner to dismiss his complaints against two judges, Cooper and Toogood. Mr. Slavich was previously declared a vexatious litigant, which resulted in him being refused leave to continue certain proceedings. He lodged complaints with the Judicial Conduct Commissioner regarding the judges' decisions and their refusal to grant him leave to proceed with his case. When the Commissioner dismissed his complaints, Mr. Slavich sought judicial review of the Commissioner's decision, which was denied by the High Court. Mr. Slavich then applied for a recall of the Court's judgment, claiming there were special reasons justifying such action.

The central legal issue was whether the Court's refusal to grant leave for judicial review could be recalled based on the criteria established in Horowhenua County v Nash (No 2). Specifically, Mr. Slavich argued that there were "very special reasons" that justice required the judgment to be recalled, as outlined in the Court of Appeal's guidelines in Erwood v Maxted. He contended that the Court had misapprehended the basis of his complaint and had failed to properly consider the allegations of judicial misconduct.

The Court found that there were no "very special reasons" to justify recalling the judgment. It noted that Mr. Slavich's primary complaint was about the substantive findings of the judges in declaring him a vexatious litigant, which was properly the subject of an appeal, not a collateral attack through judicial review. The Court further clarified that the proposed judicial review was misconceived, as it was not a review of the Commissioner's failure to conduct a proper statutory investigation but rather a review of the Commissioner's decision dismissing the complaints. The Court emphasized that the recall power is not a substitute for appeal and does not allow for a re-casting of arguments or the introduction of new arguments that could have been raised previously. Consequently, the application for recall was dismissed.

Orders