Cheng v Chief Executive, Department of Corrections
[2022] NZCA 589
•1 December 2022 at 10 am
| IN THE COURT OF APPEAL OF NEW ZEALAND I TE KŌTI PĪRA O AOTEAROA |
| CA665/2021 [2022] NZCA 589 |
| BETWEEN | THOMAS CHENG |
| AND | CHIEF EXECUTIVE, DEPARTMENT OF CORRECTIONS |
| Court: | Miller and Clifford JJ |
Counsel: | Appellant in person |
Judgment: | 1 December 2022 at 10 am |
JUDGMENT OF THE COURT
The second respondent’s application to strike out the appeal is granted.
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REASONS OF THE COURT
(Given by Clifford J)
Introduction
The second respondent, SERCO, applies under r 37 of the Court of Appeal (Civil) Rules 2005 (the Rules) to strike out an appeal filed by Mr Cheng on the basis he has failed to pay security for costs.
The first respondent, the Department of Corrections, abides the decision of this Court.
Background
On 11 December 2020, Downs J stayed a number of claims Mr Cheng had brought against SERCO and the Department of Corrections.[1] After re-pleading, Mr Cheng applied to lift the stay in relation to four claims. On 13 October 2021, the Judge declined to do so on three of the four claims (High Court judgment).[2]
[1]Cheng v Department of Corrections [2020] NZHC 3273.
[2]Cheng v Department of Corrections [2021] NZHC 2725.
On 9 November 2021, Mr Cheng filed an appeal against the High Court judgment. Security for costs in the sum of $14,120 was due by 7 December 2021 but not paid.
On 25 January 2022, Mr Cheng applied to dispense with security for costs.[3] The Deputy Registrar declined that application on 16 May 2022. On 23 June 2022, that decision was upheld on review by Dobson J, who directed Mr Cheng to pay security for costs by 22 July 2022.[4]
[3]Court of Appeal (Civil) Rules 2005, r 35(6)(c).
[4]Cheng v Department of Corrections [2022] NZCA 268. [Dispensation judgment].
Mr Cheng failed to pay security for costs by the due date. On 12 August 2022, SERCO applied to strike out Mr Cheng’s appeal.
On 19 September 2022, Mr Cheng applied for an extension of time to file a memorandum opposing SERCO’s strike-out application. That application was declined on 5 October 2022.[5] In doing so the Court directed the Registrar to set an on-the-papers fixture for the hearing of the strike-out application, and to timetable submissions. That fixture was set for the week of 14 November 2022 and submissions were to be filed by SERCO and the Department of Corrections by 14 October 2022 and by Mr Cheng on 26 October 2022. Any submissions in reply were to be filed by 2 November 2022.
[5]Cheng v Department of Corrections CA665/2021, 5 October 2022 (Minute of Miller J).
SERCO filed its submissions on 14 October 2022, the Department of Corrections on 27 October 2022 and Mr Cheng filed an application for an extension of time to file submissions, together with his submissions, on 9 November 2022.
We are satisfied that nothing turns on the delay of either the Department of Corrections or Mr Cheng in filing submissions and we have therefore read both submissions. We note, further, that both SERCO (on 11 November 2022) and the Department of Corrections (on 15 November 2022) have provided memoranda in response to Mr Cheng’s late submissions.
To date, Mr Cheng has not paid security for costs.
This application
SERCO applies to strike out Mr Cheng’s appeal on the following grounds:
(a)Mr Cheng was required to pay security for costs in the sum of $14,120 on or before 22 July 2022;
(b)his application to dispense with security for costs was declined by the Deputy Registrar and this Court; and
(c)Mr Cheng has not paid security for costs to date.
SERCO also submits that r 44A of the Rules applies, and the appeal should also be struck out on the basis Mr Cheng has failed to prosecute the appeal with due diligence and dispatch. SERCO points to the fact that Mr Cheng has failed to apply for the allocation of a hearing date or file the case on appeal since the appeal was accepted for filing on 9 November 2021.
Analysis
Rule 37(1) of the Rules provides the Court may make an order striking out an appeal if security for costs is not paid by the time payment is due. This Court has previously emphasised the mandatory nature of r 35,[6] and that strike out will be the “inevitable consequence” of an appellant’s failure to pay security for costs by the due date.[7]
[6]He v Hard To Find But Worth The Effort Quality Secondhand Books Ltd (in liq) [2007] NZCA 565, (2007) 18 PRNZ 757 at [12].
[7]Corbett v Legal Complaints Review Officer [2011] NZCA 223 at [16]–[17].
In his late submissions opposing strike-out Mr Cheng only briefly addressed the question of security for costs. He said:
[23] The lawyers here seek costs against me for the purpose of using any non-payment to prevent my claims from reaching the substantive hearing of the case. They are not worried about cost recovery. I have been incarcerated for over 6 and [a] half years now, and prisoner wages average $0.40 per hour. They know that I cannot pay, and that I will be deported back to Singapore when I am released. Their concern is to prevent me from proving [my] case before a High Court judge where declaratory relief against them is undesirable.
[24] I humbly ask that Your Honours somehow allow me to plead my case without allowing this insurmountable hurdle of cost and security for costs from becoming the sole impediment from accessing a fundamental right to access justice.
In declining Mr Cheng’s application to review the Registrar’s decision declining to dispense with security for costs, the Court observed that if Mr Cheng’s claimed impecuniosity was to be determinative of his application to dispense with security for costs, then formal verification of the detail of his own financial position and that of family entities that might reasonably be expected to support him would be required. In requesting a review of the Deputy Registrar’s decision, Mr Cheng had not provided any amplification of his previous claim to impecuniosity, notwithstanding the Deputy Registrar’s caution that further detail would be needed to be satisfied on that point.[8]
[8]Dispensation judgment, above n 4, at [13].
Mr Cheng still not having addressed that issue, the “inevitable” consequence of strike out is unavoidable.
Result
SERCO’s application to strike out Mr Cheng’s appeal is granted.
Solicitors:
Meredith Connell, Wellington for First Respondent
Duncan Cotterill, Wellington for Second Respondent
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