Dawson v Independent Election Services Limited

[2012] NZHC 3373

IN THE HIGH COURT OF NEW ZEALAND ROTORUA REGISTRY

CIV-2012-463-800 [2012] NZHC 3373

BETWEEN  DARRYL GRANT DAWSON Appellant

ANDINDEPENDENT ELECTION SERVICES LIMITED

First Respondent

ANDWHAKATANE DISTRICT COUNCIL Second Respondent

Hearing:         12 December 2012 (telephone conference) Appearances: Appellant in person

M C Frogley for the First and Second Respondents

Judgment:      13 December 2012

JUDGMENT OF WOODHOUSE J

This judgment was delivered by me on 13 December 2012 at 4:30 p.m. pursuant to r 11.5 of the High Court Rules 1985.

Registrar/Deputy Registrar

……………………………………

Parties / Solicitors: Mr D G Dawson

Mr M C Frogley, Brookfields, Solicitors, Auckland

DAWSON V INDEPENDENT ELECTION SERVICES LIMITED HC ROT CIV-2012-463-800 [13 December

2012]

Waiver of security

[1]      The appellant, Mr Dawson, has applied for waiver of security for costs.  Rule

20.13 of the High Court Rules applies.  The essence of Mr Dawson’s contention is recorded in his memorandum dated 5 December 2012.  He submits: “This case is of great public interest and involves a significant interest under the NZ Bill of Rights Act 1990”.  In support he refers to Ratepayers and Residents Action Association Inc v Auckland City Council.[1]

[1] Ratepayers and Residents Action Association Inc v Auckland City Council [1986] 1 NZLR 746 (CA)

[2]      The application for waiver is opposed by the respondents.

[3]      Matters relevant to the application were discussed with Mr Dawson and Mr Frogley, for the respondents, in a telephone conference on 12 December 2012.  This, together with Mr Dawson’s memorandum, has assisted in determination of this issue.

[4]      I am satisfied that this is not a case justifying waiver of security for costs.

[5]      The broad principles were stated by the Court of Appeal in RIG v Chief

Executive of the Ministry of Social Development[2] as follows:

[2] RIG v Chief Executive of the Ministry of Social Development [2010] NZCA 370, (2010) 20 PRNZ

703. An application for leave to appeal to the Supreme Court was dismissed: G v Chief Executive of the Ministry of Social Development [2010] NZSC 141, (2010) 20 PRNZ 705.

[3]       In the normal course, appellants in civil proceedings in this Court are required to pay security for costs.[3] Security for costs will be waived where it is in the interests of justice to do so. Given that the normal rule is that security must be provided, exceptional circumstances are needed to justify waiver.[4]

[4]       The circumstances of the appeal are relevant, in the sense that the appellant must honestly intend to pursue it and it must be arguable. 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 whether there is any public interest in having them determined.[5] Impecuniousity alone is not usually sufficient to justify a waiver, but may be reason to reduce the quantum of security.

[3] Court of Appeal (Civil) Rules 2005, r 35(2).

[4] Fava v Zaghloul [2007] NZCA 498, (2007) 18 PRNZ 943 at [9].

[5] Creser v Official Assignee CA196/05, 12 June 2006 at [29].

[6]      Mr Dawson has not satisfied me that there are exceptional circumstances. And it is to be borne in mind that the assessment of exceptional circumstances must be weighed from the perspective of the respondent as well as the appellant.  I have taken this into account.

[7]      Mr Dawson firmly, and I am sure genuinely, contends that this is a matter of public interest.  The fact that a case may involve matters of public interest does not of itself mean that security should be waived.  A range of other factors needs to be brought into the balance.  But addressing the public interest aspect, I am not satisfied that this can be elevated to the level of significance advanced by Mr Dawson in respect of this appeal.  I have emphasised the last words because the appeal is not, in a direct sense, concerned with the matters of public importance referred to by Mr Dawson.  The matters which he says are of public importance are matters relating to local body elections.   In a general sense these are, of course, matters of public importance.   But the appeal itself is concerned with a question as to whether the District  Court  was  wrong  in  striking  out  Mr  Dawson’s  claim.    A  strike  out application in itself does not involve matters of public interest.  Rather it involves the application of well established principles.  Whether those principles were correctly applied in the District Court is not a matter of public interest or public importance, notwithstanding a need to assess the viability of the substantive claim Mr Dawson advances.

[8]      Ratepayers and Residents Action Association Inc v Auckland City Council, relied on by Mr Dawson, is not directly on point.  That case was not concerned with security for costs on an appeal, now governed by r 20.13 of the High Court Rules, but security sought in the original proceeding by the defendant from the plaintiff on the grounds that the plaintiff might not be in a position to pay costs at the end of the substantive proceeding if the defendant was successful.   Security for costs of that sort  is  now governed  by r 5.45.    It  is  unnecessary to  go  into  the detail  of the difference between the two types of security.  Under r 5.45 the Court’s discretion is broader than under r 20.13.  This is made sufficiently clear by the Court of Appeal’s confirmation in RIG v Chief Executive of the Ministry of Social Development that the normal rule is that security must be provided; that exceptional circumstances are needed to justify waiver. That is not the position under r 5.45.

[9]      I also note Mr Dawson’s advice that he will, by selling a motor cycle, be able

to pay the security of $1,880.

[10]     Accordingly, Mr Dawson’s application for waiver of security is dismissed. Security  is  to  be  provided  by  payment  into  Court  of  a  sum  of  $1,880.    The respondent sought payment within 10 working days in accordance with r 20.13(4). In the circumstances outlined by Mr Dawson I am satisfied that some additional time should be allowed, and it is not apparent that additional time would  cause any material prejudice to the respondents.  The security sum is to be paid into Court no later than Friday, 8 February 2013.  I have directed that payment should be made by

8 February 2013 in anticipation that this will give Mr Dawson sufficient time to raise the money, by the means discussed in the conference, or in other ways.

Points on appeal

[11]     As  discussed  in  the  telephone  conference,  Mr  Dawson  is  to  file  a memorandum identifying the specific matters in the judgment under appeal that Mr Dawson contends are wrong. This is for the following reasons and purposes:

(a)      The application to appeal document is not in the form required by the rules for a notice of appeal.  It does not identify clearly and succinctly the points in the District Court judgment which Mr Dawson contends are wrong.

(b)The application to appeal refers to a wide range of matters of fact, or factual contention.   Some of these are not directly relevant to the question as to whether the Judge was right or wrong in striking out the claim.  In addition, numbers of the factual matters are matters which arose after the hearing in the District Court and normally these matters could not be raised on an appeal.

(c)       A concise statement identifying the particular points in the District

Court judgment contended to be wrong will assist this Court on appeal

in better understanding Mr Dawson’s arguments on appeal and will

better inform the respondents as to the arguments.

[12]     For these reasons a succinct statement of points on appeal, directed to the matters just outlined, is to be filed and served by 8 February 2013.

Further case management conference

[13]     A further case management conference is to be scheduled by the registrar on the first available date after 22 February 2013.  This is two weeks after the date for payment of security and filing of the points on appeal to allow the parties time to consider  the  position  and  file  memoranda  for  the  further  case  management

conference.

Woodhouse J