Slavich v Legal Complaints Review Officer HC Auckland CIV-2010-404-3604

[2011] NZHC 1216

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CIV-2010-404-3604

BETWEEN  JOHN KENNETH SLAVICH Applicant

ANDLEGAL COMPLAINTS REVIEW OFFICER

First Respondent

ANDMEGAN BALL Second Respondent

Hearing:         13 October 2011

Appearances: Applicant in person

P Gunn and M D Downs for the First and Second Respondents

Judgment:      13 October 2011

(ORAL) JUDGMENT OF WOODHOUSE J

Parties / Solicitors:

Mr J K Slavich, Hamilton

Mr P Gunn / Mr M D Downs, Crown Law, Wellington

SLAVICH V LEGAL COMPLAINTS REVIEW OFFICER HC AK CIV-2010-404-3604 13 October 2011

[1]      There is an interlocutory application by Mr Slavich in which he contends that counsel for the second respondent, in a hearing before White J in December 2010 on an application for security for costs, acted in contempt of Court.  The contempt in its essence is said to arise from a failure to make a disclosure to the Judge relating to a matter arising in the trial of Mr Slavich in the High Court in Hamilton in 2006.

[2]      Mr Slavich’s application records that if counsel, Mr Gunn, is found by this Court to be in contempt then, amongst other things, this Court should recall the judgment of 16 December 2010 in which White J directed Mr Slavich to provide security for costs in this proceeding in a sum of $20,000.

[3]      The security for costs has not been paid to date.  Costs awarded in favour of the  second  respondent  on  the  security  for  costs  application,  in  a  sum  of approximately $5,000, have not been paid to date.  Mr Slavich advises that he did file an appeal against the decision of White J but did not proceed with it when he was advised by the Court of Appeal that leave to appeal was required.  Mr Slavich says that he decided instead to bring the present application because the matters contained  in  it  would  have  been  raised  in  the  Court  of Appeal.    The  present application was not filed until 27 April 2011.

[4]      Mr  Slavich  responsibly  and  properly  acknowledged  that  if  there  is  no foundation for the contention that Mr Gunn acted in contempt of Court then none of the relief he is seeking can be granted.

[5]      Having read the documents filed in support of and in opposition to this application, together with the judgment of White J of 16 December 2010, I am satisfied that the contention that Mr Gunn acted improperly, let alone in contempt of Court, is not made out.

[6]      Mr Slavich’s contentions relate to Mr Gunn’s submissions on the merits of Mr  Slavich’s  substantive  claim  in  this  proceeding  –  that  is,  the  application  for judicial review.   White J’s assessment on the merits of the claim does not, in my judgment, disclose any basis upon which it could be contended that the manner in which the argument was advanced for the second respondent was in any way improper.  I refer in particular to [12] of the judgment of 16 December.

[7]      Mr Slavich submits that there was impropriety on the part of Mr Gunn by failing to make disclosure to White J in respect of the conduct of the trial of Mr Slavich in the High Court at Hamilton.   I can capture the essence of this by re- producing part of Mr Slavich’s application:

2.2      Specific Grounds:

(a)       In relation to orders sought in 1(a) above [that counsel, Mr Gunn, for the second respondent is in contempt of Court]:

(i)        The  Crown  Law  Counsel,  Mr.  Gunn,  is  aware  that  their Crown witness document in question was not tendered by the Crown to the High Court in Hamilton during the Applicants [sic] trial.

(ii)      That that document was not contained in the High Court “Notes of Evidence” or “Transcript of Proceedings” as anticipated by the Court of Appeal.

(iii)     He is in contempt of Court as he did not disclose that fundamental fact that is known to him, to the Court, when the  Court  was  asked  to  decide  on  the  merits  of  the substantive case in relation to its security of costs decision.

[8]      The matters raised in these and other paragraphs are matters which have been canvassed on a number of occasions in other Court proceedings.  I refer in particular to R v Slavich,[1]  Slavich v R[2]  and Slavich v Judicial Conduct Commissioner.[3]     I recognise that the precise arguments that may have been advanced by Mr Slavich in respect of this central matter may have been different to an extent from arguments now being advanced.  Nevertheless the matters now being raised are matters which,

one way or another, have been canvassed at length in earlier Court proceedings with

final decisions of the Courts.  Because of this I am further satisfied that there was no impropriety  of  any  sort  by  Mr  Gunn  in  the  way  in  which  he  conducted  the application for security for costs.

[1] R v Slavich [2009] NZCA 188, CA461/07, 15 May 2009.

[2] Slavich v R [2009] NZSC 87 and [2011] NZSC 103.

[3] Slavich v Judicial Conduct Commissioner HC Hamilton, CIV-2010-419-975, 14 July 2011, Andrews J.

[9]      For these reasons – a failure to establish the foundation for the application –

the application is dismissed.

[10]     The application is also dismissed for a separate reason.   That is that this application is an abuse of process because it amounts to a collateral attack on final decisions of Courts.  These are the final decisions I have already referred to.  The judgment of Andrews J dealt with eight proceedings commenced by Mr Slavich against many parties.   All of these defendants were or are connected directly or indirectly to matters at or arising out of the trial in Hamilton in 2006.  Central to Mr Slavich’s  contentions  in  these proceedings  are  matters  raised  in  this  application directly or indirectly. Andrews J said:

[77]      The matters now raised by Mr Slavich were squarely before the Court of Appeal, having been raised in the affidavits filed in that Court. Although  it  was  open  to  Mr  Slavich’s  counsel  to  ask  that  Heath  J  be requested to provide a report to the Court of Appeal (which it could have done under s 394 of the Crimes Act), he did not do so. I have concluded that the allegation that Heath J did not have the transcript before him is “so demonstrably  contrary  to  indisputable  fact  that  the  matter  ought  not  to

proceed further”.54

[78]      This  conclusion  is  reached  from  Heath  J’s  statement  that  the

transcript formed part of Ms Gibbs’ evidence, the submissions made to the

Court of Appeal that Heath J should not have taken Ms Gibbs’ unsworn

evidence (including the transcript) into account, and the judgments of the Court of Appeal and Supreme Court. Mr Slavich cannot escape from the central fact that in arguing his case before the Court of Appeal, he accepted that the evidence, which he now says was concealed from Heath J, was before the Judge.

[79]     The factual matters alleged in all of the judicial review proceedings have already been considered and determined by the Court of Appeal. They have been raised in his applications for leave to appeal to the Supreme Court, which declined leave to appeal. The Supreme Court also held, in particular, that it was not reasonably arguable that Heath J was in error concerning Ms Gibbs’ evidence. It is not open to Mr Slavich to re-litigate the presence in the record, or the role of, Ms Gibbs’ evidence in his trial. That was squarely before the Court of Appeal.

[11]     These observations apply to the matters raised by Mr Slavich in the present application.   The application is an abuse of process.   For this separate reason the application is dismissed.

[12]     Two other applications are before the Court, being matters arising within the last week to two weeks.  The first relates to subpoenas issued by this Court on the request of Mr Slavich purportedly requiring counsel for the second respondent, Mr Gunn,  and  the  second  respondent,  to  attend  Court  at  the  hearing  today  and  to produce documents relating to the Hamilton High Court trial in 2006, which documents are in turn related to the central issue of concern to Mr Slavich which I have outlined earlier.   On the face of it – and I do not need to say more – these subpoenas should not have been issued because the proceeding was stayed until security for costs was paid.  There is an application to set the subpoenas aside for the reason I have just noted and also because they amount to an abuse of process. Having regard to the decision I have made on the primary application the subpoenas are effectively spent.  The proceeding is stayed.  Nevertheless I make a formal order that these subpoenas are set aside.

[13]     The third application is one dated 7 October 2011 by Mr Slavich in which he seeks an order for determination of a separate question under r 10.15 of the High Court Rules.   Because of the decision on the primary application that application cannot proceed.  This application is also directed to the issue relating to the Hamilton trial, which I have referred to several times.   This application is accordingly dismissed.

[14]     The second respondent seeks costs on a 2B basis.  Costs are sought for one counsel only, although Mr Downs quite properly appeared to argue the subpoena issue.    Mr  Slavich  opposed  costs  but  recognised  that  there  was  no  particular argument that he could advance to the effect that the normal rule should not apply – that is, that costs follow the event.  Accordingly, there is an award of costs in favour of the second respondent on a 2B basis together with reasonable disbursements.

[15]     The order for security for costs made by White J together with the order for stay of this proceeding until the costs are paid continues in force.  For the avoidance of doubt I emphasise that no steps are to be taken in this proceeding by or on behalf of Mr Slavich until security for costs is provided in accordance with the judgment. In addition there are the outstanding costs awarded on that application and further

costs now awarded.

Woodhouse J