Clarke v Watts - [2010] NZCA 221

IN THE COURT OF APPEAL OF NEW ZEALAND
CA588/2009
[2010] NZCA 221
BETWEENNEIL MARTIN CLARKE
Applicant

ANDCOREY DANIEL WATTS
Respondent

Counsel:Applicant in person
D G Dewar for Respondent

Judgment:31 May 2010 at 10.30 am

JUDGMENT OF ARNOLD J

The application for review of the Registrar’s decision declining a dispensation from paying security for costs is declined.
REASONS
Introduction
[1]       The applicant, Mr Clarke, filed an appeal in this Court and then applied, out of time, for dispensation from the obligation to pay security for costs.[1] The Registrar declined his application and security was set at $4740. This is an application for review of that decision.
Background
[1]Court of Appeal (Civil) Rules 2005, r 35(3).
[2]       Mr Clarke filed an action in the Wellington High Court against the Police, with Mr Watts as second defendant, alleging false imprisonment and breach of the New Zealand Bill of Rights Act 1990. After the defendants applied to strike out the action, Mr Clarke discontinued the proceedings. On 9 March 2006, Associate Judge Gendall ordered Mr Clarke to pay costs of $4,680 to Mr Watts.
[3]       Mr Clarke then began fresh proceedings based on identical allegations against the defendants in the Wellington District Court. Mr Watts applied for those proceedings to be dismissed, on the basis that Mr Clarke had failed to pay the costs ordered by the Associate Judge, and those proceedings were also discontinued.
[4]        Mr Clarke then applied for leave to appeal to this Court against the costs award. On 17 May 2007, leave was declined for want of jurisdiction.[2] The Court held that since the Associate Judge was exercising the jurisdiction of a Judge sitting in chambers,[3] the appropriate course was for Mr Clarke to seek a review of the decision in the High Court.[4] This Court awarded costs against Mr Clarke on his failed application. Mr Clarke then sought leave to appeal from the Supreme Court, but only in respect of the further costs award, not the failed application. The Supreme Court declined leave to appeal on 9 October 2007.[5]
[2]      Clarke v New Zealand Police [2007] NZCA 294.
[3]      Judicature Act 1908, s 26J.
[4]      Ibid, s 26P.
[5]      Clarke v New Zealand Police [2007] NZSC 83.
[5]       Mr Watts meanwhile issued bankruptcy proceedings against Mr Clarke, on the basis of the unpaid costs order. Mr Clarke sought orders staying execution of the costs order and setting aside the bankruptcy notice until the challenge to the costs order had been determined. The proceedings were stayed on 19 June 2007 on the condition that Mr Clarke pay $4,901.18 into Court, being the sum of the original costs and interest. Mr Clarke made payment accordingly.
[6]        After this Court’s decision denying jurisdiction, Mr Clarke filed an application in the High Court for leave to review the costs award out of time. Dobson J declined leave.[6] The Judge noted that the total delay was in the order of 14 months. Extraordinary circumstances were required to grant such an extension, and…

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.

Continue reading Clarke v Watts

Details

AGLC: Clarke v Watts [2010] NZCA 221
Case: [2010] NZCA 221
Decision Date: 31 May 2010

CaseChat Overview and Summary

The applicant, Mr. Clarke, sought a review of the Registrar's decision declining his application for dispensation from paying security for costs. The respondent, Mr. Watts, did not oppose the review but pointed out that Mr. Clarke had failed to serve the application and notice of appeal on him. The Court of Appeal needed to decide whether the Registrar's decision was correct and whether the appeal had any prospect of success.

The Court considered that while Mr. Clarke was impecunious, this alone was not sufficient to waive the requirement for security. The Court also noted that the appeal had no prospect of success as it did not touch upon the merits of the original claim, and the claims may now be time-barred. The appeal only related to the release of funds held by the Registrar, and the Court held that the order to release the monies was a natural consequence of the High Court's confirmation of the costs award.

The Court concluded that the Registrar was right to require Mr. Clarke to pay $4,740 by way of security for costs. The application for review of the Registrar's decision was declined, and there was no order for costs. The Court held that requiring security was necessary to protect Mr. Watts from the expense of resisting the appeal without some protection for costs. The appeal had no public interest and no prospect of success, and there was no reason to reduce the amount of security.

Orders