Slavich v Wellington District Court

IN THE SUPREME COURT OF NEW ZEALAND

I TE KŌTI MANA NUI O AOTEAROA

SC 15/2024
[2024] NZSC 30

BETWEEN	JOHN KENNETH SLAVICH Applicant
AND	WELLINGTON DISTRICT COURT First Respondent ATTORNEY-GENERAL Second Respondent

Court:	Glazebrook, Kós and Miller JJ
Counsel:	Applicant in person
Judgment:	16 April 2024

JUDGMENT OF THE COURT

The application for review is declined.

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REASONS

The applicant’s appeal was struck out in the Court of Appeal on 14 February 2024. First, under r 37(1) of the Court of Appeal (Civil) Rules 2005 for non-payment of security for costs and, secondly, under r 44A for failure to prosecute the appeal with due diligence, by failing to pay the filing fee for the appeal.[1] The background circumstances are set out in full in the decision of the Court of Appeal and need not be traversed again here.
[1]Slavich v Wellington District Court [2024] NZCA 12 (Goddard and Mallon JJ) at [17].
The applicant does not seek leave to appeal against that decision.[2] Instead he seeks leave to appeal a direction by Mallon J, made after the appeal had been struck out, to take no action on a collateral complaint of contempt made against Crown counsel in the appeal. That direction, given on 15 February 2024, stated that as the appeal had been struck out, no live matter remained before that Court for decision.
[2]Mr Slavich confirmed that fact in correspondence with a Deputy Registrar of this Court.
A Deputy Registrar of this Court rejected the present application for leave to appeal on the basis that there was no application for leave to appeal against the judgment below striking out the applicant’s appeal. The applicant seeks review of this filing decision.
The position here is not dissimilar to that in Fehling v West Coast District Health Board.[3] The circumstances of the present application are that there is no longer a live proceeding below, and nor is there an application for leave to appeal calculated to reinstate that former proceeding. That combination of events effectively leaves this Court without jurisdiction to act in terms of s 68 of the Senior Courts Act 2016.[4]
[3]Fehling v West Coast District Health Board [2016] NZSC 155.
[4]None of this, of course, precludes resort by the applicant to the complaint procedures under Part 7 of the Lawyers and Conveyancers Act 2006.
The application for review is declined.

CaseChat Overview and Summary

The Supreme Court of New Zealand considered an application from John Kenneth Slavich, who sought review of a decision made by a Deputy Registrar refusing his application for leave to appeal a decision of the Wellington District Court. The appeal was initially struck out by the Court of Appeal due to non-payment of security for costs and failure to pay the filing fee, leading to a collateral complaint of contempt against Crown counsel. Following the strike-out, Mallon J directed that no action be taken on the complaint, reasoning that no live matter remained before the Court of Appeal. Slavich sought leave to appeal this direction, but his application was rejected by a Deputy Registrar of the Supreme Court, who found no application for leave to appeal against the Court of Appeal's decision. The Supreme Court held that it lacked jurisdiction to review the filing decision because there was no longer a live proceeding below and no application for leave to appeal that could reinstate the former proceeding. The Court noted that the applicant could still pursue his complaint under the procedures outlined in Part 7 of the Lawyers and Conveyancers Act 2006.

The central legal issues the Court had to address were whether it had jurisdiction to review the filing decision of the Deputy Registrar and whether the applicant's appeal could proceed given that the underlying appeal had been struck out. The Court examined the circumstances of the application and determined that the lack of a live proceeding and the absence of an application for leave to appeal against the Court of Appeal's decision left it without jurisdiction to act. The Court compared the situation to the case of Fehling v West Coast District Health Board, where similar jurisdictional issues arose. The Court concluded that the absence of a live proceeding and the ineffective nature of the application meant that it could not proceed with the review.

The Supreme Court found that it was without jurisdiction to review the Deputy Registrar’s decision declining the application for leave to appeal. The Court held that the absence of a live proceeding below and the lack of an application for leave to appeal against the Court of Appeal's decision rendered the Court unable to act. This outcome was consistent with the principles set out in Fehling v West Coast District Health Board, where it was held that the Court lacked jurisdiction in similar circumstances. The Court emphasised that the applicant could still pursue his complaint through the complaint procedures under the Lawyers and Conveyancers Act 2006.

The Court declined the application for review, thereby upholding the decision of the Deputy Registrar. No further orders were made beyond the declination of the review application.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established