Slavich

[2021] NZHC 3031

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

I TE KŌTI MATUA O AOTEAROA TE WHANGANUI-A-TARA ROHE

[2021] NZHC 3031

IN THE MATTER OF

A review of the Registrar’s decision

(Slavich)

On the papers
Judgment:	10 November 2021

JUDGMENT OF MALLON J

Introduction

[1]                  On 27 March 2013 the High Court made an order that no civil proceedings shall, without the leave of the Court, be instituted by John Kenneth Slavich in any Court either on his own behalf or in any fiduciary or representative capacity.1  On   30 July 2021, by email, Mr Slavich attempted to file a statement of claim and notice of proceedings for judicial review, as well as an application for a fee waiver, in the Wellington High Court.

[2]                  The documents were initially rejected by the Registry because of the 27 March 2013 order. Mr Slavich sought a review of this decision, contending that the 27 March 2013 order expired on 28 March 2016. On 2 November 2021 the Registrar referred the matter to me in my capacity as List Judge.

The law

[3]                  The 27 March 2013 order was made under s 88B of the Judicature Act 1908. An order under that Act could be unlimited as to time. The 27 March 2013 order was unlimited as to time.

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

A review of the Registrar’s decision (Slavich) [2021] NZHC 3031 [10 November 2021]

[4]                  The Judicature Act has been repealed by the Senior Courts Act 2016.  Under s 166 of that Act, an order may be made restricting a person from commencing or continuing a civil proceeding. Section 168 of that Act provides that such an order “has effect for a period of up to 3 years as specified by the Judge, but the Judge making it may specify a longer period (which must not exceed 5 years) if he or she is satisfied that there are exceptional circumstances justifying the longer period”.

[5]                  An order made under s 88B of the Judicature Act that is in force as at 1 March 2017 (when the Senior Courts Act and Schedule 5 of that Act came into force) has “full effect as if [it] had originated under the corresponding provisions of this Act and, where necessary, must be treated as having originated under this Act”.2 There are conflicting decisions of this Court about the effect of this transitional provision and the time periods specified in s 168.

[6]                  In Rafiq v Whata J, Venning J held that it could be inferred from an indefinite order under s 88B that the circumstances were exceptional such that it was now to be treated as a five-year ban under s 168. He also held that the five-year period ran from when the Act came into force.3 In Siemer v Auckland High Court, Downs J agreed with this view.4 In Siemer v New Zealand Law Society, Palmer J took a different view.5 He considered an indefinite s 88B order was only to be treated as a five-year ban if it was clear “on the face of the judgment which imposed the order” that “there were exceptional circumstances justifying a period of more than three years”.6 Otherwise the s 88B order was to be treated as a three-year ban. He also considered that the three (or five) year period was to run from when the s 88B order was made (rather than from when the Senior Courts Act came into force).

[7]                  These decisions are the subject of an appeal. The Court of Appeal heard the appeal on 20 October 2021. Its decision is reserved.

2      Senior Courts Act 2016, Schedule 5, cl 10(2).

3      Rafiq v Whata J [2019] NZHC 1193 at [30]-[32] and [36].

4      Siemer v Auckland High Court [2019] NZHC 3393 at [9].

5      Siemer v New Zealand Law Society [2019] NZHC 3075.

6 At [25].

This case

[8]                  The Registry initially took the view that the 27 March 2013 order that applies to Mr Slavich would expire on 28 February 2022 (that is, five years after the Senior Courts Act came into force). This view relied on Rafiq v Whata J. Mr Slavich, however, referred to Palmer J’s decision in Siemer v New Zealand Law Society and contended that his restriction ended on 28 March 2016.

[9]                  For present purposes, depending on which is the correct interpretation of the transitional provision and s 168 of the Senior Courts Act, there are the following possibilities:

(a)the s 88B order ended on 26 March 2016 (a three-year ban that commenced on 27 March 2013);

(b)the s 88B order ended on 26 March 2018 (a five-year ban that commenced on 27 March 2013);

(c)the s 88B order ended on 28 February 2020 (a three-year ban that commenced on 1 March 2017); or

(d)the s 88B order has not yet ended and will not come to  an end until 28 February 2022 (a five-year ban that commenced on 1 March 2017).

[10]              There is no doubt that the Court that made the s 88B order regarded Mr Slavich as seriously vexatious. He had instituted 35 private prosecutions that the Court regarded as an “abuse of process” and “extravagant and scandalous” following his conviction on criminal charges that was upheld  on appeal.7  He had also  initiated   17 civil proceedings that all related “directly or indirectly to his conviction … at trial, and the steps that he took subsequently to challenge that conviction”.8 He made “scandalous allegations” that were “totally devoid of any justification”.9 In the Court’s view he was unable to accept that the litigation had been determined against him and

7      Attorney-General v Slavich, above n 1, at [164]-[165].

8 At [166].

9 At [170].

there was “no doubt that unless Mr Slavich is restrained from doing so he will continue to engage in the institution of vexatious legal proceedings”.10

[11]              However, the Court did not expressly discuss whether an indefinite or a finite ban was appropriate. In the circumstances, including that there is an extant appeal on the issue, I consider it is appropriate to err on the side of the least restrictive available interpretation of the transitional provision and s 168 of the Senior Courts Act. This means that, for the purposes of considering whether Mr Slavich needs leave to commence his 30 July 2021 proceeding, I will treat the s 88B order made against   Mr Slavich as no longer requiring the leave of the Court.11

[12]              However, on the face of the intended proceeding, it appears that it concerns the failure to grant leave to file a criminal charge and to recall decisions failing to grant that leave. It is unclear if it relates to the same matters that have previously been the subject of attempted prosecutions and civil proceedings and that led to the s 88B order. If it does, it may be an abuse of process. Further information will be required before that can be determined. For now, I simply note the issue.

Result

[13]              The s 88B order should  not  be  treated  as  in  effect  for  the  purposes  of Mr Slavich’s intended proceedings purported to be filed on 30 July 2021.

Mallon J

10     At [171] and [174].

11     Whether this approach will apply to any future proceedings filed by Mr Slavich may depend on the outcome of the Court of Appeal’s decision on the issue.