Slavich v Attorney-General [2013] NZCA 356 (8 August 2013)

Last Updated: 15 August 2013

IN THE COURT OF APPEAL OF NEW ZEALAND
CA165/2013 [2013] NZCA 356
BETWEEN	JOHN KENNETH SLAVICH Appellant
AND	THE ATTORNEY-GENERAL Respondent
CA197/2013
AND BETWEEN	JOHN KENNETH SLAVICH Appellant
AND	THE ATTORNEY-GENERAL Respondent

Counsel:	Appellant in person P Gunn for Respondent
Judgment: (On the papers)	8 August 2013 at 10.15 am

JUDGMENT OF HARRISON J
(Review of Registrar’s decision on security for costs)

1. The application for review of the Registrar’s decision is declined.
2. The appellant must give security for costs in the sum of $5,880 in this Court within 20 working days of this judgment.

100. There is no order for costs on this application.

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REASONS

Introduction

[1] John Slavich has filed appeals in this Court, first, in CA165/2013 against a judgment delivered by Toogood J in the High Court at Auckland^[1] and, second, in CA197/2013 against a judgment delivered by Cooper and Toogood JJ in the same court.^[2]
[2] Mr Slavich subsequently filed applications in this Court for waivers of payment of security for costs on both appeals. In a decision delivered on 21 June 2013 the Registrar allowed Mr Slavich’s applications in part. While she was not satisfied that Mr Slavich had established exceptional circumstances justifying waivers for both appeals, she accepted that Mr Slavich should not be required to give security of $5,880 for each of the two appeals (a total of $11,760). Instead, she directed Mr Slavich to pay one amount of $5,880 as security for costs for both appeals.
[3] Mr Slavich has applied to review the Registrar’s decision.

Principles

[4] As Mr Slavich accepts, the test when considering an application for waiver of payment of security for costs is whether the interests of justice require that course.^[3] Mr Slavich carries the burden of demonstrating exceptional circumstances which justify a dispensation from the statutory obligation to give security.
[5] In conducting the relevant inquiry, relevant factors include whether Mr Slavich’s appeal rights will be rendered nugatory if dispensation is not granted; impecuniosity if established (but not necessarily a decisive factor); and the merits of the appeal.
[6] There is another wider factor relevant to the interests of justice. On the one hand is, as Mr Gunn for the Attorney-General accepts, Mr Slavich’s constitutional right of access to the courts. Balanced against that is the equally important factor of freeing defendants from the considerable burden of groundless litigation.^[4] The Attorney-General should not be put to the expense of arguing an appeal if it has no merit.

Decision

[7] Mr Slavich has not satisfied me that the Registrar erred in concluding that the interests of justice did not require waiver of payment of security of costs on one appeal, for these reasons.
[8] First, Mr Slavich submits that an obligation to pay one set of security for costs will render his appeal rights nugatory because he is unable to pay the sum of $5,880. However, he has simply made an assertion to the effect that he will be financially disadvantaged if he has to give security. He has failed to provide any verified evidence of his financial circumstances or his inability to pay. Without this evidence, the available inference is that Mr Slavich is able but does not wish to give security in the normal way. That is not an exceptional circumstance.
[9] Second, and independently of the first ground, Mr Slavich has failed to show that his appeals have any merit. The first appeal has been effectively overtaken by the second. In substance the High Court granted the Attorney-General’s application under s 88B of the Judicature Act 1908 and made various prohibitory orders against Mr Slavich on the grounds that he has persistently and without any reasonable cause instituted vexatious legal proceedings. The many grounds raised in Mr Slavich’s application to review do not raise any real prospect of a successful appeal on the merits. Mr Slavich appears to be attempting to re-argue or re-litigate points which have been decisively determined against him in other litigation including in the Supreme Court.
[10] Third, while Mr Slavich argues that the originating proceeding commenced by the Attorney-General is a draconian act of the state, that factor is not of itself relevant if his appeal is without merit. His appeal does not raise any issue of general or public importance.
[11] Accordingly, I am not satisfied that the Registrar erred in concluding that Mr Slavich had failed to establish exceptional circumstances justifying a waiver of payment of security for costs on both appeals.

Result

[12] Mr Slavich’s application for review of the Registrar’s decision is declined. He must give security for costs in the sum of $5,880 in this Court within 20 working days of this judgment. There is no order for costs on this application.
[13] The Registrar is directed not to accept any further documents filed by Mr Slavich relating to his application to review the Registrar’s decision.

Solicitors:
Crown Law Office, Wellington for Respondent

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^[1] Attorney-General v Slavich HC Auckland CIV-2012-404-6353, 8 March 2013.

^[2] Attorney-General v Slavich [2013] NZHC 627.

^[3] Easton v Broadcasting Commission [2009] NZCA 252, (2009) 19 PRNZ 675; Blanshard v The National Mutual Life Association of Australasia Ltd HC Auckland CIV-2001-404-1961,
10 December 2003.

^[4] Brogden v Attorney-General [2001] NZCA 208; [2001] NZAR 809 (CA) at [20].