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

1. Ms Clements seeks a review of decisions by the Registrar declining to waive filing fees in these two related appeals.

2. 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.

3. 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.

4. 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.

5. 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.

6. 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 would start or continue with the proceeding even if waiver was refused.  It follows the Registrar was correct to decline waiver on the first ground.

7. As to whether the proceedings do raise a matter of “genuine public interest”, the term “genuine public interest” is relevantly defined in the Regulations.  It means a proceeding that raises a question of law of significant interest to the public or to a substantial section of the public.[3]

   [3]Court of Appeal Fees Regulations 2001, reg 5(4).

8. I agree with the Registrar that the proceedings in question do not satisfy that definition.  Although Wylie J did address the merits of Ms Clements’ judicial review claims — and found them wanting — that was not the basis of his decision.[4]  The basis of his decision was want of prosecution[5] and accordingly that would necessarily be the focus of the appeal proceedings in this Court.  That is a very case specific issue and not of general or public importance.  Similarly, the question of costs.

   [4]Strike-out decision, above n 1, at [30].

   [5]At [31].

9. For completeness, I also record that I have considered a matter raised by Ms Clements in an email to the Court dated 7 November 2018 written in response to the Registrar’s decision.  In the email, Ms Clements asserts that she cannot afford to pay the filing fees.  She says she does not have any money or assets and barely enough money to eat or pay rent.

10. The Regulations authorise the Registrar to waive a filing fee if paying the fee would cause the applicant undue hardship.[6] However it is incumbent on an applicant to provide supporting evidence of their impecuniosity,[7] and Ms Clements has failed to do so.

    [6]Court of Appeal Fees Regulations, reg 5(3)(b) provides inability to pay a fee is established for an applicant who has not been granted legal aid if they are dependent on certain kinds of social security or would otherwise suffer undue financial hardship if they paid the fee.

    [7]Boswell v Millar [2013] NZCA 219 at [6]; and Rafiq v Chief Executive of the Ministry of Business, Innovation and Employment [2013] NZCA 243 at [9]–[11].

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

Solicitors:
Meredith Connell, Wellington