Slavich v Wellington District Court [2024] NZCA 12 (14 February 2024)

Last Updated: 19 February 2024

IN THE COURT OF APPEAL OF NEW ZEALAND I TE KŌTI PĪRA O AOTEAROA

CA100/2023 [2024] NZCA 12

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

Court:	Goddard and Mallon JJ
Judgment: (On the papers)	14 February 2024 at 1 pm

JUDGMENT OF THE COURT

1. The application for an extension of time to pay the filing fee and security for costs is declined.
2. The appeal is struck out.

100. We make no order for costs.

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REASONS OF THE COURT

(Given by Mallon J)

Introduction

• [1] This judgment relates to whether the Court should make an order striking out the appeal under rr 37(1) and 44A of the Court of Appeal (Civil) Rules 2005.

Background

• [2] The appellant was convicted on charges of fraud in 2006.^[1] He unsuccessfully appealed his convictions to this Court,^[2] and was also unsuccessful in seeking leave to appeal to the Supreme Court.^[3] He then made numerous applications and sought to bring prosecutions against the Crown solicitor and the Solicitor-General and others. A High Court order made in 2013 declared him a vexatious litigant.^[4]
• [3] In about 2019 the appellant also made three applications for the exercise of the royal prerogative of mercy. In March 2022 the appellant sought to file a charging document in the Wellington District Court. It alleged that the Chief Legal Counsel for the Ministry of Justice had wilfully attempted to pervert the course of justice in the advice he gave relating to whether his convictions for fraud should be referred back to the Court of Appeal under the royal prerogative of mercy.
• [4] On 31 March 2022 Judge Mill in the District Court rejected the charging document for filing on the basis that there was insufficient evidence to justify a trial.^[5] The appellant brought a judicial review proceeding challenging this decision. The Attorney-General applied to strike out the proceeding. McQueen J in the High Court granted that application on the basis that the statement of claim disclosed no reasonably arguable case and was an abuse of process.^[6]
• [5] On 24 February 2023 the appellant filed in this Court a notice of appeal against McQueen J’s decision. An application for waiver of the filing fee was also made. Those steps and the steps that have followed are summarised below:

Date	Event
24/2/23	Appeal filed against judgment of McQueen J dated 21/2/23. Fee waiver application for filing fee received with notice of appeal.
8/3/23	Application to dispense with security for costs received.
13/3/23	Fee waiver application declined by Deputy Registrar.
14/3/23	Application to review the Deputy Registrar’s decision on the filing fee received.
24/3/23	Judgment on review of fee waiver released.[7] The application for review of the Deputy Registrar’s decision is declined.
27/3/23	Application to recall the fee waiver review decision received. Fee waiver application for recall application received with the application.
3/4/23	Fee waiver application for application to recall declined by Deputy Registrar.
3/4/23	Application for review of interlocutory filing fee decision by Deputy Registrar received.
18/4/23	Appellant memorandum received seeking orders from the Court.
24/4/23	Respondent memorandum received opposing orders.
28/4/23–19/5/23	Further appellant memoranda received seeking orders.
17/5/23	Deputy Registrar’s decision determining that security for costs is not dispensed with. Payable by 16 June 2023.
29/5/23–14/6/23	Further appellant and respondent memoranda received (appellant seeking orders from the Court).
21/6/23	Judgment on recall application of judgment on the review of Deputy Registrar’s decision on the filing fee waiver.[8] Result: the application for recall of the judgment on the review of the Deputy Registrar’s decision is declined.
23/6/23	Application for review by a judge of the decision by the Deputy Registrar not to dispense with security for costs received.
20/7/23	Application to remove/recuse counsel for the Attorney-General received.
21/7/23	Fee waiver application received for interlocutory fee for application to remove/recuse counsel for the Attorney-General.
21/7/23	Judgment on review of Deputy Registrar’s decision on security for costs.[9] Result: the application for review of the Deputy Registrar’s decision is declined.
25/7/23	Rule 43(1) date (filing case on appeal) extended to 28 August 2023. No grounds remain for any further r 43(1B) extension.
25/7/23	Fee waiver declined by Deputy Registrar for application to remove/recuse counsel for the Attorney-General.
1/8/23	Rule 19A memorandum received opposing the application to remove/recuse counsel for the Attorney-General. Attorney-General seeks costs.
8/8/23	Appellant submissions received for application to remove/recuse counsel for the Attorney-General.
17/8/23	$400 fee paid for application to remove/recuse counsel for the Attorney-General.
17/8/23	Appellant memorandum filed “seeking orders for the purpose of disposing fairly with the interlocutory application”.
23/8/23	Respondent memorandum filed in response to appellant’s memorandum of 17/8/23.
23/8/23	Appellant memorandum received in response to respondent’s memorandum of 23/8/23.
24/8/23	Application for an extension of time under r 43(2) received.
29/8/23	Fee waiver application received for r 43(2) application.
7/9/23	Appellant memorandum received on r 43(2) application.
7/9/23	Rule 19A memorandum received on r 43(2) application. Attorney-General seeks costs.
12/9/23	Fee waiver declined by Deputy Registrar for application for an extension of time under r 43(2). Fee payable without delay.
19/9/23	$400 fee paid for filing the r 43(2) application for an extension of time.
27/9/23	Appellant submissions received for r 43(2) application.
18/10/23	Respondent submissions received for r 43(2) application.
18/10/23	Appellant emails seeking that respondent submissions be rejected for filing.
2/11/23	Response received to appellant’s email of 18/10/23.
3/11/23	Appellant memorandum received alleging counsel for the Attorney-General’s contempt of court.
30/11/23	Minute of Brown J sent to parties. The Court gives 10 working days’ notice of its intention to consider making an order striking out the appeal.
1/12/23	Appellant memorandum received in response to Minute of Brown J seeking extension of time to pay filing fee for appeal and security for costs to 1 March 2023.
13/12/23	Attorney-General memorandum received in response to Minute of Brown J and the appellant’s memorandum of 1/12/23.

• [6] As shown in this summary of the steps, while the appellant has paid the filing fee for his application to remove/recuse counsel and the filing fee for his application for an extension of time to file the case on appeal, he has not paid the filing fee for his substantive appeal against the judgment of McQueen J, nor the filing fee for his application to recall the judgment on the review of the fee waiver decision in respect of the substantive appeal. Nor has the appellant paid security for costs for the appeal.
• [7] The minute of Brown J dated 30 November 2023 was in these terms:^[10]

[1] On 24 February 2023 Mr Slavich filed a notice of appeal against a judgment of McQueen J striking out his proceeding on the grounds that it disclosed no reasonably arguable cause of action and was an abuse of process. That proceeding was an application for judicial review of a decision of a District Court Judge rejecting a charging document which Mr Slavich had sought to file in the Wellington District Court.

[2] Mr Slavich applied for a waiver of the filing fee on the appeal. That application was declined by the Deputy Registrar. An application for review of that decision was declined in a judgment of Goddard J.

[3] Mr Slavich also applied for dispensation from the requirement to pay security for costs. That application was declined by the Deputy Registrar. An application for review of that decision was declined in a judgment of Gilbert J.

[4] Despite having paid neither the filing fee nor security for costs, Mr Slavich persists in filing interlocutory applications in this matter.

[5] This appeal will not proceed further while Mr Slavich is in default of payment of the filing fee and security for costs.

[6] The Court gives Mr Slavich 10 working days’ notice of its intention to consider making an order striking out the appeal under rr 37(1) and 44A(1) of the Court of Appeal (Civil) Rules 2005 on account of his default in payment of the filing fee and security for costs.

• [8] The 10 working days’ notice referred to in the minute has expired.

Extension of time

• [9] As noted in the above summary of the steps taken in this appeal, in response to the minute of Brown J the appellant requested an extension of time to pay the filing fee for the substantive appeal and to pay security for costs to 1 March 2024. The appellant sought this on the basis that an application to remove Crown Law as counsel was filed the day before Gilbert J’s judgment declining the application for review of the Deputy Registrar’s decision not to dispense with security for costs. The appellant submitted that, if this application to remove counsel was successful, the public interest criteria would be met and the appellant would seek to have the waiver of the filing fee and the decision on security for costs reconsidered. Alternatively, the extension of time was sought on the basis that the new Attorney-General would have an opportunity to intervene in the matter and would require time to do so.
• [10] By memorandum dated 13 December 2023, counsel for the second respondent submitted that there was no route by which Mr Slavich could seek a further time to pay the filing fee and security for costs. This was because the applications for review of the Deputy Registrar’s decisions on the filing fee and security for costs have been finally determined.
• [11] We agree that the rules do not provide for a reconsideration of the decision to waive the filing fee once it has been finally determined by a judge on a review of a registrar or deputy registrar’s decision. We also agree that the rules do not provide for a reconsideration of an application to dispense with security for costs once it has been finally determined by a judge on a review of a registrar or deputy registrar’s decision.
• [12] Rather, r 37 of the Court of Appeal (Civil) Rules provides:
  37. Consequences of failure to comply with requirement to pay security for costs or prescribed fees

(1) The Court may, on an interlocutory application or on its own initiative, make an order striking out an appeal if security for costs is not paid by the time payment is due.

(2) The appellant may not apply for the allocation of a hearing date under rule 38(1) if the appellant is in default of any obligation to pay security for costs or prescribed fees.

(3) For the purpose of subclause (2), an appellant is not in default of an obligation to pay security for costs or a prescribed fee if—

(a) a party has applied to the Registrar under rule 35(6) in relation to security for costs, or to the Registrar for a waiver of a fee, and the application has not yet been determined; or

(b) a party has applied for a review of a Registrar’s decision on an application referred to in paragraph (a) and the review has not yet been determined; or

(c) a party is seeking leave to appeal or is appealing to the Supreme Court against a decision on a review referred to in paragraph (b), and the application for leave to appeal or the appeal has not yet been determined.

(4) However, if the circumstances in subclause (3)(a), (b), or (c) apply, see rule 38(5A).

• [13] Rule 37(3) does not apply because the decision to waive the filing fee and not to dispense with security have been finally determined.
• [14] Even if there were a route to reconsidering the decisions on waiver of the filing fee and on security for costs, we are not satisfied that the matters relied on by the appellant would warrant any such reconsideration.
• [15] An extension of time to make payment of the filing fee and security for costs is therefore declined.

Strike out

• [16] Because the appellant is in default of the requirement to pay security for costs the Court may on its own initiative make on order striking out the appeal under r 37(1). Additionally, under r 44A the Court may on its own initiative make an order striking out an appeal if the appellant “is in continuing default in complying with any of these rules”.
• [17] We are satisfied that the appeal should be struck out under r 37(1) for non‑payment of security for costs and under r 44A for failure to prosecute the appeal with due diligence, by failing to pay the filing fee for the appeal. The application for review of the fee waiver of the filing fee was determined on 24 March 2023. The recall application of the review of the fee waiver was determined on 21 June 2023. The application for review of the decision not to dispense with security for costs was determined on 21 July 2023. The appellant has had ample time to pay the filing fee for the substantive appeal and security for costs. He has failed to do so despite the notice given by Brown J on 30 November 2023 that the Court would consider striking out his appeal for non-payment. The above chronology shows the appellant continuing to file applications, as well as memoranda and emails, since filing his appeal on 24 February 2023 despite not paying the filing fee for the appeal nor the security for costs.^[11] This is in the context of an appeal that does not raise any issue that it would be in the public interest for this Court to consider.^[12]
• [18] The appeal is accordingly struck out. As this appeal is struck out on this Court’s own motion, we make no order for costs.

Result

• [19] The application for an extension of time to pay the filing fee and security for costs is declined.
• [20] The appeal is struck out.
• [21] We make no order for costs.

Solicitors:
Crown Law Office | Te Tari Ture o te Karauna, Wellington for Respondent

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^[1] R v Slavich HC Hamilton CRI-2006-419-89, 12 October 2006.

^[2] R v Slavich [2009] NZCA 188.

^[3] R v Slavich [2009] NZSC 87.

^[4] Attorney-General v Slavich [2013] NZHC 627.

^[5] The charging document was rejected pursuant to s 26(3)(a) of the Criminal Procedure Act 2011.

^[6] Slavich v Wellington District Court [2023] NZHC 251 [High Court judgment].

^[7] Slavich v Wellington District Court [2023] NZCA 76 [fee waiver review decision].

^[8] Slavich v Wellington District Court [2023] NZCA 252 [recall decision].

^[9] Slavich v Wellington District Court [2023] NZCA 314 [security for costs review decision].

^[10] Footnotes omitted.

^[11] The appellant was not entitled to take any step in the appeal until the filing fee was paid, following determination of his fee waiver application: Court of Appeal Fees Regulations 2001, reg 7(3).

^[12] Fee waiver review decision, above n 7, at [10]–[12]; and security for costs review decision, above n 9, at [6].