Burgess v Beaven - [2015] NZCA 373

IN THE COURT OF APPEAL OF NEW ZEALAND

CA293/2015
[2015] NZCA 373

BETWEEN	GARY OWEN BURGESS Applicant
AND	SUSAN NATALIE BEAVEN Respondent

Counsel:

Applicant in person
A M Corry for Respondent

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.

____________________________________________________________________

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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2015] NZCA 373
Decision Date: 14 August 2015 at 10 am

CaseChat Overview and Summary

In the Court of Appeal of New Zealand, Gary Burgess sought to appeal a judgment delivered by Nation J in the High Court at Christchurch, dismissing his application to waive the requirement to give security for costs on his appeal against an earlier decision of the Family Court. The respondent, Susan Beaven, opposed the application. The Registrar had 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 on the grounds that he was impecunious, he had an arguable appeal which a solvent litigant would wish to pursue, and a miscarriage of justice would arise if he was denied the ability to have his appeal heard. The Registrar dismissed Mr Burgess’ application for dispensation and he applied to review the Registrar’s decision.

The court was required to decide whether the Registrar erred in dismissing Mr Burgess' application for a dispensation from the requirement to give security for costs. The court noted that the Registrar was not satisfied on the evidence available that Mr Burgess was impecunious. Even if Mr Burgess 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. The court considered whether a reasonable and solvent litigant would wish to pursue the appeal and concluded that the appeal was not one which a solvent litigant would pursue, especially having regard to the benefits of bringing an appeal when weighed against the costs. The court also considered whether there was an issue of general or public importance arising on Mr Burgess’ underlying appeal and concluded that there was no such issue.

The court dismissed Mr Burgess' application to review the Registrar's decision. The court held that the Registrar was correct to conclude 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. The court also held that there was no issue of general or public importance arising on Mr Burgess’ underlying appeal. The court ordered Mr Burgess 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.

Orders