Slavich v Judicial Conduct Commissioner [2012] NZHC 3142 (23 November 2012)

Last Updated: 12 January 2013

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CIV-2012-404-4604 [2012] NZHC 3142

UNDER section 4 of the Judicature Amendment Act

1972

IN THE MATTER OF an application for Judicial Review

BETWEEN JOHN KENNETH SLAVICH Applicant

AND JUDICIAL CONDUCT COMMISSIONER First Respondent

AND DOUGLAS WHITE, TERENCE ARNOLD, JOHN RICHARD WILD, SUSAN GWYNFA MARY GLAZEBROOK AND PAMELA JEAN ANDREWS

Second Respondents

Hearing: 21 November 2012

Appearances: Applicant in person

P J Gunn for First Respondent

Judgment: 23 November 2012

_{JUDGMENT OF PETERS J}

This judgment was delivered by Justice Peters on 23 November 2012 at 4 pm pursuant to r 11.5 of the High Court Rules

Registrar/Deputy Registrar

Date: ...................................

_{Solicitors: Crown Law, Wellington: [e-mail]}

_{Copy for: J K Slavich, Hamilton: [e-mail]}

SLAVICH V JUDICIAL CONDUCT COMMISSIONER HC AK CIV-2012-404-4604 [23 November 2012]

Introduction

[1] This is an application by the Applicant (“Mr Slavich”) for orders:1

(a) that Mr Gunn cease to act as Counsel for the Respondents;

(b) that if any Respondent engages any other Crown Law Counsel they are similarly to cease acting, and particularly:

(i) Ms Gwyn, Mr Mander and Mr Palmer;

(ii) Mr Pike, Ms McKenzie, Mr Soper and Ms Ball; and

(c) that the Registrar arrange the appointment of an amicus curae.

[2] The First Respondent, being the Judicial Conduct Commissioner (“Commissioner”) appointed under the Judicial Conduct Commissioner and Judicial Conduct Panel Act 2004 (“Act”), opposes the application. The Commissioner does so principally on the ground that the application constitutes an abuse of process, as constituting a collateral attack on earlier decisions of the Court.

[3] The Second Respondents, being Judges or retired Judges of the higher Courts of New Zealand, abide the decision of the Court.

[4] Prior to mid October 2012 Mr Slavich commenced eight applications for judicial review against the Commissioner and Second Respondents. On 25 October

2012 Ellis J made an order consolidating seven of the applications, the consolidated proceeding being CIV-2012-404-4604.2 That leaves one other application which, for the moment at least, has not been consolidated, that being CIV-2012-404-5936. I do not need to make any further reference to that proceeding. This judgment concerns

_{the consolidated proceedings only.}

1 _{Application dated 18 September 2012.}

2 CIV-2012-404-4604; CIV-2012-404-4606; CIV-2012-404-4607; CIV-2012-404-4609; CIV-2012-

404-4726; CIV-2012-404-4727; and CIV-2012-404-5939.

[5] Each application for review concerns the Commissioner’s dismissal of complaints by Mr Slavich to the Commissioner (“complaints”).

[6] The Act provides a process by which a person may make a complaint to the Commissioner about the conduct of a judge, as defined in s 5 of the Act. I note that the definition of “judge” in the Act excludes any retired judge and so the group comprising the Second Respondents will require reconsideration in due course.3

[7] There is a helpful discussion of the scheme of the Act and of the

Commissioner’s powers on receipt of a complaint in Wilson v Attorney-General.4

[8] Mr Slavich contends that the Commissioner fell into error in his consideration of the complaints and he seeks orders quashing the Commissioner’s dismissals and referring the complaints back to the Commissioner for reconsideration. In addition, in one of the proceedings,5 Mr Slavich seeks orders akin to declaratory relief as to the Commissioner’s duties.

[9] The Commissioner has made an application to strike out each application and/or for summary judgment. This application is to be heard in April 2013.

Background

[10] Mr Slavich was convicted on various counts in a judge alone trial before Heath J in Hamilton in October 2006. The Court of Appeal dismissed his appeal against conviction and the Supreme Court declined leave to appeal against the Court of Appeal decision.6

[11] Since then Mr Slavich has commenced numerous proceedings which it is unnecessary for me to address, other than to say that the lawyers referred to in the present application are or have been counsel at Crown Law. One way or another,

_{each has had some involvement in proceedings concerning Mr Slavich, whether by}

3 _{Judicial Conduct Commissioner and Judicial Conduct Panel Act 2004, ss 5 and 16(1)(g).}

4 _{Wilson v Attorney-General [2011] 1 NZLR 399 (HC) at [25]-[52].}

5 _{CIV-2012-404-4727.}

6 R v Slavich HC Hamilton CRI-2006-419-89, 12 October 2006; R v Slavich [2009] NZCA 188; and

Slavich v R [2009] NZSC 87.

acting or appearing in them or in staying prosecutions, as in the case of the Deputy

Solicitors-General referred to below. In particular, Mr Slavich has previously:

(a) charged Mr Gunn, Mr Pike, Ms McKenzie, Mr Soper and Ms Ball with contempt of court.

(b) charged Ms Gwyn, Mr Mander and Mr Palmer (all of whom are present or former Deputy Solicitors-General) with perverting the course of justice and with acting in a criminal group, and has also joined these lawyers to a civil proceeding in which Mr Slavich sought injunctive relief. Each of Ms Gwyn, Mr Mander and Mr Palmer exercised a power to stay proceedings conferred on them by s 159

Summary Proceedings Act 1957.7

[12] It is unnecessary for me to make any comment regarding the charges that Mr Slavich has laid. In fairness to counsel, however, I do say that I have read the judgments in the proceedings to which Mr Slavich has been a party and to which both he and Crown counsel referred me. To the extent those judgments say anything about the charges laid they are consistent with the view that Crown counsel have acted entirely properly throughout.

Discussion

[13] It is common ground that the Court has jurisdiction to make an order debarring counsel and/or solicitors from acting or appearing in a particular case if it is necessary to do so for the effective and efficient administration of justice. The Court will not make such an order lightly, as the effect of it will be to deprive a party

of counsel of their choice.8 Relevant authorities, to which Mr Slavich referred me,

are Solicitor-General v Miss Alice, Clear Communications v Telecom Corporation, and Black v Taylor.9

7 _{Constitution Act 1986, ss 9A and 9C.}

8 Clear Communications Ltd v Telecom Corporation of New Zealand Ltd (1999) 14 PRNZ 477 (HC)

_{at 483 and 489.}

9 Solicitor-General v Miss Alice [2007] 1 NZLR 655 (CA); Clear Communications Ltd v Telecom Corporation of New Zealand Ltd (1999) 14 PRNZ 477 (HC); and Black v Taylor [1993] 3 NZLR 403 (CA).

[14] The circumstances on which Mr Slavich relies as warranting an order in this case are that he has brought various proceedings against the lawyers to whom I have referred and that each lawyer is or would be subject to a conflict of interest in acting on Mr Slavich’s applications for review. This conflict is said to arise as each lawyer would be directly affected if Mr Slavich were to succeed on his applications for review. Mr Slavich contends their conflict means that each lawyer is incapable of giving independent advice or encouragement to reach a settlement out of Court.

[15] It is quite possible that the Court would not allow counsel to act or appear on a case if the outcome might affect them in some way. That is because there might be cause for concern as to whether they could be relied on to fulfil their duties to the Court. Counsel also have obligations to the party for whom they appear but, as a general rule, it is not the Court’s role to police those obligations, at least in the first instance.

[16] There is no dispute that Mr Slavich has laid informations and brought civil proceedings against the counsel to whom I have referred. I do not accept however that the orders he seeks are necessary for the effective and efficient administration of justice.

[17] In particular, and as discussed with the parties at the hearing, I am not satisfied as to the basis for Mr Slavich’s principal submission that any of the counsel concerned might be affected if Mr Slavich were to succeed on one or more of his applications for review.

[18] The first matter the Court will need to consider on those applications is whether Mr Slavich has made out a ground of review. That is likely to require the Court to consider the complaints, the Commissioner’s response to the complaints and the governing provisions of the Act.

[19] If Mr Slavich makes out a ground of review, the Court will have to consider the relief (if any) that it should order. As I have said, in each statement of claim Mr Slavich seeks an order referring the complaint in question back to the Commissioner for reconsideration. If a complaint or complaints were referred back,

the Commissioner would need to decide whether he should dismiss the complaint, refer the complaint to the Head of Bench or recommend to the Attorney-General that a judicial conduct panel be appointed.10

[20] The issues on the applications for review will be confined. They will require analysis of the complaint and of the Commissioner’s response. Mr Slavich and counsel will be required to address the court on the relevant documents (likely to be few in number), the provisions of the Act and relevant authorities.

[21] I am unable to see how the prior conduct of any of the lawyers to whom I have referred might be relevant to the confined issues which will fall to be determined on those applications.

[22] Nor do I consider that the counsel concerned might be affected by the outcome before the Court.

[23] During the hearing I asked Mr Slavich how the individual lawyers concerned might be affected by the Court granting the orders he seeks against the Commissioner.

[24] With respect to Mr Slavich, his response revealed that he did not understand that the Commissioner’s functions do not extend beyond receiving complaints regarding the conduct of a judge (not lawyers) and that the courses of action open to the Commissioner are those set out in the Act and no more than that.

[25] I do not propose to grant the orders sought as I am not satisfied there is any basis on which to do so. Given the above, it is not necessary for me to consider whether the application constitutes an abuse of process as a collateral attack on earlier decisions of the Court.

[26] I do not propose to appoint an amicus as I am not satisfied there is any good reason to do so.

[27] I dismiss this application accordingly.

[28] I make an order for costs in favour of the First Respondent. Counsel for the First Respondent sought indemnity costs or, at the very least, an uplift. The case has already been classified as one warranting costs on a category 2 basis.11 I make an order for costs on a 2B basis, together with disbursements as fixed by the Registrar. I do not propose to order an uplift or indemnity costs as I did not hear Mr Slavich on those matters. I would give him an opportunity to respond but that is likely to put all

concerned to more expense and trouble than the exercise is worth.

..................................................................

M Peters J