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

A review of the Registrar's decision (Slavich) [2021] NZHC 3031 [10 November 2021]IN THE HIGH COURT OF NEW ZEALANDWELLINGTON REGISTRYI TE KŌTI MATUA O AOTEAROATE WHANGANUI-A-TARA ROHE[2021] NZHC 3031IN THE MATTER OF A review of the Registrar's decision(Slavich)On the papersJudgment: 10 November 2021JUDGMENT OF MALLON JIntroduction[1] On 27 March 2013 the High Court made an order that no civil proceedingsshall, without the leave of the Court, be instituted by John Kenneth Slavich in anyCourt either on his own behalf or in any fiduciary or representative capacity.1 On30 July 2021, by email, Mr Slavich attempted to file a statement of claim and noticeof proceedings for judicial review, as well as an application for a fee waiver, in theWellington High Court.[2] The documents were initially rejected by the Registry because of the 27 March2013 order. Mr Slavich sought a review of this decision, contending that the 27 March2013 order expired on 28 March 2016. On 2 November 2021 the Registrar referredthe 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March 2013 order wasunlimited as to time.1 Attorney-General v Slavich [2013] NZHC 627.[4] The Judicature Act has been repealed by the Senior Courts Act 2016. Unders 166 of that Act, an order may be made restricting a person from commencing orcontinuing a civil proceeding. Section 168 of that Act provides that such an order "haseffect for a period of up to 3 years as specified by the Judge, but the Judge making itmay specify a longer period (which must not exceed 5 years) if he or she is satisfiedthat 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 March2017 (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 areconflicting decisions of this Court about the effect of this transitional provision andthe time periods specified in s 168.[6] In Rafiq v Whata J, Venning J held that it could be inferred from an indefiniteorder under s 88B that the circumstances were exceptional such that it was now to betreated as a five-year ban under s 168. He also held that the five-year period ran fromwhen the Act came into force.3 In Siemer v Auckland High Court, Downs J agreedwith this view.4 In Siemer v New Zealand Law Society, Palmer J took a different view.5He considered an indefinite s 88B order was only to be treated as a five-year ban if itwas clear "on the face of the judgment which imposed the order" that "there wereexceptional circumstances justifying a period of more than three years".6 Otherwisethe 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 fromwhen the Senior Courts Act came into force).[7] These decisions are the subject of an appeal. The Court of Appeal heard theappeal 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 appliesto Mr Slavich would expire on 28 February 2022 (that is, five years after the SeniorCourts 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 andcontended that his restriction ended on 28 March 2016.[9] For present purposes, depending on which is the correct interpretation of thetransitional provision and s 168 of the Senior Courts Act, there are the followingpossibilities:(a) the s 88B order ended on 26 March 2016 (a three-year ban thatcommenced on 27 March 2013);(b) the s 88B order ended on 26 March 2018 (a five-year ban thatcommenced on 27 March 2013);(c) the s 88B order ended on 28 February 2020 (a three-year ban thatcommenced on 1 March 2017); or(d) the s 88B order has not yet ended and will not come to an end until28 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 Slavichas seriously vexatious. He had instituted 35 private prosecutions that the Courtregarded as an "abuse of process" and "extravagant and scandalous" following hisconviction on criminal charges that was upheld on appeal.7 He had also initiated17 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'sview he was unable to accept that the litigation had been determined against him and7 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 continueto engage in the institution of vexatious legal proceedings".10[11] However, the Court did not expressly discuss whether an indefinite or a finiteban was appropriate. In the circumstances, including that there is an extant appeal onthe issue, I consider it is appropriate to err on the side of the least restrictive availableinterpretation of the transitional provision and s 168 of the Senior Courts Act. Thismeans that, for the purposes of considering whether Mr Slavich needs leave tocommence his 30 July 2021 proceeding, I will treat the s 88B order made againstMr 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 thefailure to grant leave to file a criminal charge and to recall decisions failing to grantthat leave. It is unclear if it relates to the same matters that have previously been thesubject 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 beforethat 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 ofMr Slavich's intended proceedings purported to be filed on 30 July 2021.Mallon J10 At [171] and [174].11 Whether this approach will apply to any future proceedings filed by Mr Slavich may depend onthe outcome of the Court of Appeal's decision on the issue.