Burgess v Beaven
[2015] NZCA 373
•14 August 2015 at 10 am
| IN THE COURT OF APPEAL OF NEW ZEALAND |
| CA293/2015 [2015] NZCA 373 |
| BETWEEN | GARY OWEN BURGESS |
| AND | SUSAN NATALIE BEAVEN |
| Counsel: | Applicant in person |
Judgment: (On the papers) | 14 August 2015 at 10 am |
JUDGMENT OF HARRISON J
A The application to review the Registrar’s decision is dismissed.
B The applicant is ordered to pay security in the sum of $5,880 no later than 24 August 2015.
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REASONS
The applicant, Gary Burgess, has filed an appeal against a judgment delivered by Nation J in the High Court at Christchurch in Burgess v Beaven,[1] dismissing his application to waive the requirement to give security for costs on his appeal against an earlier decision of the Family Court.
[1]Burgess v Beaven [2015] NZHC 789.
On 22 May 2015 the Registrar set security for costs on Mr Burgess’ appeal to this Court at $5,880 to be paid on or before 10 August 2015. On 19 June 2015 Mr Burgess applied for a dispensation against giving security. His grounds were that (1) he was impecunious; (2) he had an arguable appeal which a solvent litigant would wish to pursue; and (3) a miscarriage of justice would arise if he was denied the ability to have his appeal heard. The respondent, Susan Beaven, opposed the application.
In a decision delivered on 13 July 2015 the Registrar dismissed Mr Burgess’ application for dispensation. The Registrar was not satisfied on the evidence available that Mr Burgess was impecunious. In any event she concluded that (1) the appeal was not one which a solvent litigant would wish to pursue; (2) in the circumstances it was not right to require Ms Beaven to defend the appeal without security being given; and (3) there was no issue of public importance which would justify the appeal proceeding if security was not given.
Mr Burgess applies to review the Registrar’s decision. In support he has filed an extensive affidavit and synopsis of submissions. He admits that he has gross annual earnings of $28,179.70 but maintains that he is impoverished.
Mr Burgess has not established the Registrar erred in concluding that he is not impecunious. However, even if he had met that threshold, proof of impecuniosity is not of itself sufficient to justify the significant indulgence of a dispensation from a statutory requirement to give security for costs. Mr Burgess must still establish that a reasonable and solvent litigant would wish to pursue the appeal. As the Supreme Court observed in Reekie v Attorney-General:[2]
[35] Against that background, we consider that the discretion to dispense with security should be exercised so as to:
(a)preserve access to the Court of Appeal by an impecunious appellant in the case of an appeal which a solvent appellant would reasonably wish to prosecute; and
(b)prevent the use of impecuniosity to secure the advantage of being able to prosecute an appeal which would not be sensibly pursued by a solvent litigant.
A reasonable and solvent litigant would not proceed with an appeal which is hopeless. Nor would a reasonable and solvent litigant proceed with an appeal where the benefits (economic or otherwise) to be obtained are outweighed by the costs (economic and otherwise) of the exercise (including the potential liability to contribute to the respondent’s costs if unsuccessful). As should be apparent from what we have just said, analysis of costs and benefits should not be confined to those which can be measured in money.
…
[39] Protecting respondents from vexatious appeals is a legitimate purpose of the security for costs regime. This is consistent with the approaches (a) taken in relation to legal aid and (b) formerly taken in respect of appeals in forma pauperis. It is also consistent with Australian authority as to first instance proceedings. An appeal, or its conduct, may be vexatious even though it raises some issues which are arguable. Vexatiousness might be manifested, for instance, by the unreasonable and tendentious conduct of litigation, extreme claims made against other people involved in the case or perhaps a history of unsuccessful proceedings and unmet costs orders.
(Footnotes omitted.)
[2]Reekie v Attorney-General [2014] NZSC 63, [2014] 1 NZLR 737.
Nation J’s judgment was most comprehensive. He surveyed in detail the unhappy history of Mr Burgess’ litigation with Ms Beaven. He concluded:
[55] Against the background of those decisions it is reasonable for this Court to proceed on the basis that with his appeal Mr Burgess is seeking to continue with a claim against Ms Beaven which has little prospect of success, and which is likely to produce no tangible benefit to him.
[56] The amount which Mr Burgess might be required to pay as security for costs is relatively modest. Mr Burgess in memoranda to the Court on this issue has referred to his impecuniosity, although there is no affidavit evidence from him as to his precise financial situation. In a memorandum to the Court of 4 March 2015, he said “the respondent ex-wife has also failed to pay any part of the balance sum awarded to me by the Supreme Court”. Pursuant to that judgment, she was required to pay him the sum of $30,046.25 less the costs that he had to pay to Ms Beaven pursuant to judgments of the Court which has not been overturned. In submissions before me, Mr Burgess accepted he had been paid approximately $23,000 but had used approximately $16,000 of this to provide security for costs on appeals he was pursuing in respect of the litigation with the Taranaki Savings Bank and his former solicitors. He said the balance of the funds he had received had been used to pay personal debts, although no the debt to TSB Bank Ltd which it had pursued in proceedings mentioned earlier.
The Judge was also satisfied that:
[32] On the information that is currently before this Court I consider that the prospect of such outcomes [including the likelihood of strike-out] are so high that this Court needs to signal to Mr Burgess that this appeal might well be seen as part of a continuing pursuit of litigation, which in the words used by the Supreme Court in Reekie could be considered “unreasonable and tendentious”.
In my judgment the Registrar was correct to rely on these passages from Nation J’s judgment in concluding that Mr Burgess’ appeal was not one which a reasonable and solvent litigant would pursue, especially having regard to the benefits of bringing an appeal when weighed against the costs. In this respect I note that the effect of the Supreme Court’s judgment in Burgess v Beaven was to award Mr Burgess a net sum of about $23,000 on his substantive property dispute with Ms Beaven.[3] The Supreme Court expressed the optimistic expectation that its judgment would be seen as resolving all outstanding issues between the parties relating to property disputes.
[3]Burgess v Beaven [2012] NZSC 71, [2013] 1 NZLR 129.
However, that expectation has not come to fruition. Mr Burgess has continued to pursue Ms Beaven and others associated with this litigation through a series of proceedings initiated in the Family Court and High Court, and in appeals to this Court. The amount now at issue is relatively small. I am satisfied that Mr Burgess’ conduct is vexatious and that he is abusing the processes of the Court simply to prolong his dispute with Ms Beaven for reasons other than those of a financial nature.
Mr Burgess should not be granted any indulgences to pursue this purpose and the Registrar has a proper basis for concluding that it was not right to require Ms Beaven to defend the judgment under challenge without the usual protection as to costs provided by security.
I should add that there is no issue of general or public importance arising on Mr Burgess’ underlying appeal which is simply against a Family Court decision striking out an earlier proceeding, and that no miscarriage of justice could possibly arise from requiring Mr Burgess to give security.
In the circumstances Mr Burgess’ application to review the Registrar’s decision is dismissed. He is ordered to give security in the sum of $5,880 no later than 24 August 2015. In the event that he fails to do so, the Registry is to treat the appeal as being dismissed.
Solicitors:
Dawson Innes, Christchurch for Respondent
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