Clements v Auckland Council - [2018] NZCA 579

IN THE COURT OF APPEAL OF NEW ZEALAND

I TE KŌTI PĪRA O AOTEAROA

CA568/2018
[2018] NZCA 579

BETWEEN	MIRIAM CLEMENTS Applicant
AND	AUCKLAND COUNCIL First Respondent COUNCILLOR RICHARD HILLS Second Respondent COUNCILLOR CHRIS DARBY Third Respondent COUNCILLOR LINDA COOPER Fourth Respondent COUNCILLOR ROSS CLOW Fifth Respondent COUNCILLOR ALF FILIPAINA Sixth Respondent DEPUTY MAYOR BILL CASHMORE Seventh Respondent

CA631/2018
BETWEEN	MIRIAM CLEMENTS Applicant
AND	AUCKLAND COUNCIL Respondent

Counsel:	Applicant in person
Judgment: (On the papers)	18 December 2018 at 3 pm

JUDGMENT OF FRENCH J

The applications for review of the Registrar’s decisions declining to waive payment of filing fees in CA568/2018 and CA631/2018 are declined.

REASONS

Ms Clements seeks a review of decisions by the Registrar declining to waive filing fees in these two related appeals.
The background is that Ms Clements sought judicial review in the High Court over a decision of the Auckland Council to sell certain land including a car parking area. Ms Clements failed to appear on the day of the hearing and the Judge, Wylie J, struck out the proceeding for want of prosecution.[1] In a subsequent costs decision, Wylie J awarded costs to the Auckland Council.[2]
[1]Clements v Auckland Council [2018] NZHC 2084 [strike-out decision].
[2]Clements v Auckland Council [2018] NZHC 2388.
Ms Clements wishes to appeal both the decision striking out her claim (CA568/2018) and the costs decision (CA631/2018) but did not file notices of appeal in time. Accordingly, she has been required to make applications for an extension of time to appeal under r 29A of the Court of Appeal (Civil) Rules 2005. In addition to the applications for extensions of time, she has also filed an interlocutory application for stay in CA568/2018.
Filing fees were payable in respect of both applications under r 29A and the interlocutory application for a stay, unless waived. Ms Clements asked for the filing fees to be waived but this was declined by the Registrar on two grounds. The first ground was that Ms Clements intended to prosecute the applications regardless of whether the fees were waived or not. Secondly, the Registrar was not persuaded the proceedings concerned matters of genuine public interest.
On review, Ms Clements submits the Registrar was wrong to find the public interest was not engaged. Ms Clements says the appeals and the stay application raise important issues about the loss of the public’s right to own property and that a substantial miscarriage of justice will occur if the case is not heard by the Court.
Applications for waiver of fees are governed by the Court of Appeal Fees Regulations 2001. Regulation 5(2)(b) limits the Registrar’s powers to waive fees on the grounds of public interest by providing that in addition to her being satisfied the proceeding does concern a matter of genuine public interest, she must also be satisfied the proceeding is unlikely to be commenced or continued unless the fee is waived. In Ms Clements’ applications for waiver, she had ticked a box stating that she…

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: [2018] NZCA 579
Decision Date: 18 December 2018

CaseChat Overview and Summary

The Court of Appeal of New Zealand heard two applications from Miriam Clements, who sought a review of decisions by the Registrar declining to waive filing fees for her appeals against the Auckland Council's decision to sell certain land, including a car parking area. Clements had previously sought judicial review in the High Court over the Council's decision, but her case was struck out for want of prosecution. Subsequently, she applied for an extension of time to appeal and filed an interlocutory application for a stay. Clements requested that the filing fees be waived, but the Registrar declined her request on two grounds: first, that she intended to prosecute the applications regardless of whether the fees were waived or not, and second, that the proceedings did not concern matters of genuine public interest. Clements sought a review of the Registrar's decisions, arguing that the proceedings raised important issues about the loss of the public's right to own property and that a substantial miscarriage of justice would occur if the case was not heard by the Court.

The Court of Appeal examined the grounds for the Registrar's decisions, noting that Regulation 5(2)(b) of the Court of Appeal Fees Regulations 2001 limits the Registrar's powers to waive fees on the grounds of public interest. The Court agreed with the Registrar that the proceedings in question did not satisfy the definition of a genuine public interest, as the focus of the appeal was on the specific issue of want of prosecution, which was not of general or public importance. Additionally, the Court noted that the Regulations also authorize the Registrar to waive a filing fee if paying the fee would cause the applicant undue hardship, but Clements had failed to provide supporting evidence of her impecuniosity.

The Court of Appeal declined the applications for review, upholding the Registrar's decisions not to waive the filing fees. The Court found that the Registrar was correct in declining the waiver on the first ground, as Clements had indicated she would start or continue with the proceedings even if the waiver was refused. Furthermore, the Court agreed with the Registrar that the proceedings did not raise a matter of genuine public interest, as the focus of the appeal was on a case-specific issue rather than a question of law of significant interest to the public or a substantial section of the public. The Court also noted that Clements had not provided sufficient evidence to support a claim of undue hardship. Therefore, the Court declined the applications for review, and Clements was required to pay the filing fees for her appeals.

Orders