Slavich v Judicial Conduct Commissioner - [2012] NZHC 3142

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CIV-2012-404-4604 [2012] NZHC 3142

UNDER section 4 of the Judicature Amendment Act
1972

IN THE MATTER OF an application for Judicial Review

BETWEEN JOHN KENNETH SLAVICH Applicant

ANDJUDICIAL CONDUCT COMMISSIONER First Respondent

ANDDOUGLAS WHITE, TERENCE ARNOLD, JOHN RICHARD WILD, SUSAN GWYNFA MARY GLAZEBROOK AND PAMELA JEAN ANDREWS
Second Respondents

Hearing: 21 November 2012

Appearances: Applicant in person
P J Gunn for First Respondent

Judgment: 23 November 2012

JUDGMENT OF PETERS J

This judgment was delivered by Justice Peters on 23 November 2012 at 4 pm pursuant to r 11.5 of the High Court Rules

Registrar/Deputy Registrar
Date: ...................................

Solicitors: Crown Law, Wellington: peter.gunn@crownlaw.govt.nz

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

SLAVICH V JUDICIAL CONDUCT COMMISSIONER HC AK CIV-2012-404-4604 [23 November 2012]

Introduction

[1] This is an application by the Applicant (“Mr Slavich”) for orders:1

(a) that Mr Gunn cease to act as Counsel for the Respondents;

(b)that if any Respondent engages any other Crown Law Counsel they are similarly to cease acting, and particularly:

(i) Ms Gwyn, Mr Mander and Mr Palmer;

(ii) Mr Pike, Ms McKenzie, Mr Soper and Ms Ball; and

(c) that the Registrar arrange the appointment of an amicus curae.

[2] The First Respondent, being the Judicial Conduct Commissioner (“Commissioner”) appointed under the Judicial Conduct Commissioner and Judicial Conduct Panel Act 2004 (“Act”), opposes the application. The Commissioner does so principally on the ground that the application constitutes an abuse of process, as constituting a collateral attack on earlier decisions of the Court.

[3] The Second Respondents, being Judges or retired Judges of the higher Courts of New Zealand, abide the decision of the Court.

[4] Prior to mid October 2012 Mr Slavich commenced eight applications for judicial review against the Commissioner and Second Respondents. On 25 October
2012 Ellis J made an order consolidating seven of the applications, the consolidated proceeding being CIV-2012-404-4604.2 That leaves one other application which, for the moment at least, has not been consolidated, that being CIV-2012-404-5936. I do not need to make any further reference to that proceeding. This judgment concerns
the consolidated proceedings only.

1 Application dated 18 September 2012.
2 CIV-2012-404-4604; CIV-2012-404-4606; CIV-2012-404-4607; CIV-2012-404-4609; CIV-2012-
404-4726; CIV-2012-404-4727; and CIV-2012-404-5939.

[5] Each application for review concerns the Commissioner’s dismissal of complaints by Mr Slavich to the Commissioner (“complaints”).

[6] The Act provides a process by which a person may make a complaint to the Commissioner about the conduct of a judge, as defined in s 5 of the Act. I note that the definition of “judge” in the Act excludes any retired judge and so the group comprising the Second Respondents will require reconsideration in due course.3

[7] There is a helpful discussion of the scheme of the Act and of the

Commissioner’s powers on receipt of a complaint in Wilson v Attorney-General.4

[8] Mr Slavich contends that the Commissioner fell into error in his consideration of the complaints and he seeks orders quashing the Commissioner’s dismissals and referring…

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.

Keep reading for free

Create a free CaseChat account to read Slavich v Judicial Conduct Commissioner and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2012] NZHC 3142
Decision Date: 23 November 2012

CaseChat Overview and Summary

In this case, the applicant, John Kenneth Slavich, filed an application for judicial review against the Judicial Conduct Commissioner and several second respondents, who are either judges or retired judges of the higher Courts of New Zealand. The applicant sought orders to cease certain Crown Law Counsel from acting for the respondents, and for the Registrar to appoint an amicus curiae. The Judicial Conduct Commissioner opposed the application on the grounds that it constituted an abuse of process, as it was a collateral attack on earlier decisions of the Court. The second respondents chose to abide by the Court's decision.

The legal issues the Court was required to decide were whether the orders sought by the applicant were necessary for the effective and efficient administration of justice, and if so, whether the application constituted an abuse of process as a collateral attack on earlier decisions of the Court. The Court also needed to determine whether there was a good reason to appoint an amicus curiae.

The Court found that there was no basis to grant the orders sought by the applicant. The Court was not satisfied that any of the counsel concerned might be affected by the outcome before the Court, as the Commissioner's functions do not extend beyond receiving complaints regarding the conduct of a judge. The Court also did not find it necessary to consider whether the application constituted an abuse of process as a collateral attack on earlier decisions of the Court. The Court dismissed the application and made an order for costs in favour of the First Respondent, on a category 2B basis, together with disbursements as fixed by the Registrar. The Court did not propose to order an uplift or indemnity costs, as it did not hear the applicant on those matters.

The final orders of the Court were the dismissal of the applicant's application, and the imposition of costs on a category 2B basis, together with disbursements as fixed by the Registrar, in favour of the First Respondent.

Orders