Cooke v Valuers Registration Board
[2014] NZCA 203
•28 May 2014 at 11.00 am
| IN THE COURT OF APPEAL OF NEW ZEALAND |
| CA163/2014 [2014] NZCA 203 |
| BETWEEN | KENNETH ROBERT COOKE |
| AND | VALUERS REGISTRATION BOARD |
| GARY CLAPCOTT Second Respondent |
| Counsel: | Appellant in person |
Judgment: (On the papers) | 28 May 2014 at 11.00 am |
JUDGMENT OF FRENCH J
(Review of Registrar’s decision)
AThe application for review of the Registrar’s decision refusing to dispense with the payment of security for costs is dismissed.
BThe appellant must pay security for costs in the sum of $11,760.00 in relation to the appeal within 20 working days of the date of this judgment.
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REASONS
Introduction
Mr Cooke has filed an appeal against a decision of Duffy J dismissing his application for judicial review.[1]
[1]Cooke v Valuers Registration Board [2014] NZHC 323.
Security for costs on the appeal was set at $11,760.00.
Mr Cooke applied to the Registrar for security to be dispensed with under r 35(6)(c) of the Court of Appeal (Civil) Rules 2005 on the grounds of impecuniosity. The application was opposed by both respondents.
The Registrar declined the application on the grounds that Mr Cooke had provided no information to support his claim of impecuniosity and that having regard to the authorities this was not an appropriate case for dispensation.
Dissatisfied with that outcome, Mr Cooke now applies for a review of the Registrar’s decision.
Grounds for review
In support of his application for review, Mr Cooke has filed further information regarding his financial position. He further submits that his appeal has “immense national public interest” because of the first respondent’s statutory responsibilities and that security is not necessary to protect the position of the respondents.
The applicable principles
The applicable principles are well-established. In the normal course, appellants in civil proceedings are required to pay security for costs.[2] Security for costs may be dispensed with where it is in the interests of justice to do so. There must be some exceptional circumstances to justify dispensing with security for costs.[3] The appellant must honestly intend to pursue the appeal and it must be arguable, as respondents should not face the threat of hopeless appeals without provision for security. The importance of the issues raised in the appeal will be significant, as will the question of whether there is any public interest in having them determined.[4] Impecuniosity alone is not usually sufficient to justify dispensing with security for costs, but may be reason to reduce the quantum of security.[5]
Assessment
[2]Court of Appeal (Civil) Rules 2005, r 35(2).
[3]Fava v Zaghloul [2007] NZCA 498, (2007) 18 PRNZ 943 at [9].
[4]Creser v Official Assignee CA196/05, 12 June 2006 at [29].
[5]Fava v Zaghloul, above n 3, at [9].
Although the further financial information is not independently verified, I am prepared to accept for present purposes that Mr Cooke is indeed impecunious.
I am also prepared to accept that he does genuinely intend to prosecute the appeal and that the matter is of intense personal importance to him.
I accept too the importance of access to justice.
However, contrary to Mr Cooke’s submission, I am not satisfied that his appeal does raise matters of general public importance. The fact that the first respondent is exercising an important public function does not of itself mean that the appeal must automatically be of general public importance, as Mr Cooke appears to assume. Although some of the grounds of the appeal are formulated in general terms, on analysis they essentially involve case-specific factual assessments. They concern, for example, the quality of a report relied on by the first respondent in considering a complaint Mr Cooke made to it about the second respondent, as well as Duffy J’s rejection of certain evidence.
The merits of the appeal are also far from compelling.
I also do not accept Mr Cooke’s submission that because the first respondent is partly publicly funded, it does not need protection in relation to costs. That has never been the law. Nor do I accept that the fact the second respondent may have insurance cover for costs or be able to claim a percentage of his costs as a tax deduction means that he too is not entitled to protection.
Mr Cooke has failed to satisfy me that there are exceptional or special circumstances such as would warrant departing from the usual rule requiring security for costs.
The application is accordingly dismissed and the Registrar’s decision confirmed. Security for costs in the sum of $11,760.00 must be paid into Court within 20 working days of the date of this judgment.
Solicitors:
Izard Weston, Wellington for First Respondent
McElroys, Auckland for Second Respondent