Banks v Ports of Auckland Limited

[2015] NZHC 944

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CIV-2015-404-885 [2015] NZHC 944

BETWEEN

CAROL CHRISTINE BANKS

Applicant

AND

PORTS OF AUCKLAND LIMITED Respondent

Hearing:	On the papers
Appearances:	A Longdill for applicant
Judgment:	6 May 2015

JUDGMENT OF LANG J

[on application for review of Registrar's decision]

This judgment was delivered by me on 6 May 2015 at 4.30 pm, pursuant to Rule 11.5 of the High Court Rules.

Registrar/Deputy Registrar

Date……………

BANKS v PORTS OF AUCKLAND LIMITED [2015] NZHC 944 [6 May 2015]

[1]      Ms  Banks  issued  a  judicial  review  proceeding  in  this  Court  seeking  to challenge certain decisions made by Ports of Auckland Limited.   The Registrar declined Ms Banks’ application to waive the filing fee.  Ms Banks seeks a review of the Registrar’s decision.

[2]      The power to waive a filing fee is governed by Regulation 18 of the High

Court Fees Regulations 2013.  This provides as follows:

18     Power to waive fees

(1)     A person otherwise responsible for the payment of a fee required in connection with a proceeding or an intended proceeding may apply to a Registrar for a waiver of the fee.

(2)     The Registrar may waive the fee payable by the person if satisfied,—

(a)     on the basis of one of the criteria specified in regulation 19, that the person is unable to pay the fee; or

(b)     that the proceeding,—

(i)     on the basis of one of the criteria specified in regulation

20, concerns a matter of genuine public interest; and

(ii)     is unlikely to be commenced or continued unless the fee is waived.

(3)     An application under subclause (1) must be made in a form approved for  the  purpose  by  the  chief  executive  of  the  Ministry  of  Justice unless, in a particular case, the Registrar considers that an application in that form is not necessary.

[3]      As will be evident from the wording of the regulation, the Registrar may waive a filing fee in two situations.   The first is where the applicant satisfies the Registrar that he or she is unable to pay the requisite fee.  The second is where the Registrar is satisfied the proceeding concerns a matter of genuine public interest, and that the applicant would be unlikely to commence or continue the proceeding unless the fee is waived.

[4]      Where the applicant relies upon the second ground, he or she must satisfy the Registrar of both elements.   It is not sufficient to satisfy the Registrar that the proceeding raises an issue of genuine public interest.  The applicant must go further, and satisfy the Registrar that it is unlikely the proceeding will be commenced or continued unless the fee is waived.

[5]      Ms Banks did not seek a waiver of the filing fee on the basis that she was unable to pay it.  Instead, she sought waiver on the second ground.  This required her to complete two sections of the prescribed form.  In the first section she was required to tick a box confirming that the proceeding sought to determine or clarify a question of law that is of significant interest to the public or to a substantial section of the public.  She was then required to explain why she believed this to be the case.  Ms Banks duly ticked this box, and gave reasons why she considered her proceeding raised an issue of genuine public interest.

[6]      Ms Banks was then required to complete the second section, in which she was required to tick one of two further boxes.  The section was worded as follows:

If your application for the fee to be waived or refunded on these grounds is refused, would this affect your decision to commence or continue with the proceeding to which this fee relates?

þ No.  I would commence or continue with the proceeding anyway.

o Yes.  If this application is refused, this would affect my decision as to whether to commence or continue with this proceeding.

If “yes”, how? [Give reasons. Attach an affidavit in support, if necessary.]

[7]      Ms Banks ticked the first of the two boxes.  In doing so, she confirmed that she would commence and continue the proceeding even if her application for fee waiver was declined.   Ms Banks thereby effectively precluded the Registrar from granting her application, because it meant he could not be satisfied of the second element prescribed by r 18(2)(b)(ii).  The Registrar therefore had no option but to decline the application.

[8]      The  application  for  review  of  the  Registrar’s  decision  is  accordingly

dismissed.

Lang J

Solicitors:

Cook Morris Quinn