De Vries v Bartercard Exchange Limited
[2017] NZCA 142
•28 April 2017 at 3.00 pm
| IN THE COURT OF APPEAL OF NEW ZEALAND |
| CA676/2016 [2017] NZCA 142 |
| BETWEEN | ANTHONY HARRY DE VRIES |
| AND | BARTERCARD EXCHANGE LIMITED |
| Counsel: | Appellant (in person) |
Judgment: (On the papers) | 28 April 2017 at 3.00 pm |
JUDGMENT OF MILLER J
(Review of Registrar’s Decision)
AThe application for an extension of time to bring an application for dispensation of security for costs is granted.
BThe application for review of the Deputy Registrar’s decision not to waive the filing fee for the appeal is dismissed. The application for review of the Deputy Registrar’s decision not to dispense with security for costs for the appeal is also dismissed.
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REASONS
Introduction
Mr De Vries has made two applications for review of two different decisions relating to this appeal. The first is a decision by a Deputy Registrar declining his application for a waiver of the filing fee for this appeal. The second is a decision by a Deputy Registrar declining his application for a dispensation with security for costs. His appeal is against the refusal to set aside a bankruptcy notice by Associate Judge Smith in the High Court.[1]
[1]De Vries v Bartercard Exchange Limited [2016] NZHC 2874.
Mr De Vries has also applied for an extension of time to bring the application for dispensation of security for costs, as it was filed one day outside the 20 working day timeframe.[2] Mr De Vries filed the application at 11:11pm on 13 February 2017, which is clearly after the working day ended at 5:00pm; the application must thus be treated as having been received the next working day, 14 February. Since the appeal was filed on 23 December 2016, 13 February was the last working day that the application could have been filed.
[2]Court of Appeal (Civil) Rules 2005, r 35(7).
However, in the circumstances, particularly the small delay in filing the application for dispensation and the corresponding lack of prejudice to the respondent, I grant the application for an extension of time.
The Application for Waiver of the Filing Fee
An applicant may apply for waiver of the filing fee for an appeal under r 5 of the Court of Appeal Fees Regulations 2001. The Registrar may only waive the fee in specific circumstances as set out in the rule, which are that:
5 Power to waive fees
(1)A person (the applicant) otherwise responsible for the payment of a fee required in connection with a proceeding or an intended proceeding may apply to the Registrar for a waiver of the fee.
(2)The Registrar may waive the fee payable by the applicant if satisfied,—
(a)on the basis of one of the criteria specified in Subclause (3), that the applicant is unable to pay the fee; or
(b) that the proceeding,—
(i)on the basis of one of the criteria specified in subclause (4), concerns a matter of genuine public interest; and
(ii)is unlikely to be commenced or continued unless the fee is waived.
(3)For the purposes of these regulations, an applicant is unable to pay the fee sought to be waived if—
(a)the applicant has been granted legal aid in respect of the matter for which the fee is payable; or
(b)the applicant has not been granted legal aid in respect of the matter for which the fee is payable and the applicant—
(i)is dependent for the payment of his or her living expenses on a benefit of a kind specified in any of paragraphs (a) to (e), (h), and (j) of the definition of income-tested benefit in section 3(1) of the Social Security Act 1964; or
(ii)is wholly dependent for the payment of his or her living expenses on New Zealand superannuation under the New Zealand Superannuation and Retirement Income Act 2001 or a veteran’s pension under the War Pensions Act 1954; or
(iii)would otherwise suffer undue financial hardship if he or she paid the fee.
(4)For the purposes of these regulations, a proceeding that concerns a matter of genuine public interest is—
(a)a proceeding that has been or is intended to be commenced to determine a question of law that is of significant interest to the public or to a substantial section of the public; or
(b) a proceeding that—
(i)raises issues of significant interest to the public or to a substantial section of the public; and
(ii)is an appeal against a judgment, decree, or order given or made in a proceeding commenced by an organisation that, by its governing enactment, constitution, or rules, is expressly or by necessary implication required to promote matters in the public interest.
(5)An application under subclause (1) must be made in a form approved for the purpose by the chief executive of the Ministry of Justice unless, in a particular case, the Registrar considers that an application in that form is not necessary.
It will be seen that an applicant can qualify for a waiver based on their financial circumstances or when the appeal is one of genuine public interest. Addressing first Mr De Vries’ financial circumstances, there is no evidence before me that indicates he is in receipt of legal aid or a benefit, so he must “otherwise suffer undue hardship” from paying the fee to qualify.
The Deputy Registrar noted that, though Mr De Vries’s company account was in arrears at the time of the application, there was money in the account that could be used to pay the application. Mr De Vries has since contended that the money in his account noted by the Deputy Registrar was earmarked for other bills, and provided more up to date bank account records as part of his application for a dispensation of security for costs.
Considering this information, I agree with the Deputy Registrar’s assessment. As she noted, paying the filing fee will stretch Mr De Vries, but not unduly so; he clearly has some money coming into his account and is able to pay the fee.
Addressing second the public interest criterion, Mr De Vries has also suggested that the matter is one of genuine public interest essentially because he considers justice has not been done in the way he has been treated by the courts (and the doing of justice is a matter of public interest). This is a private, not a public interest; Mr De Vries’ underlying appeal relates to bankruptcy proceedings personal to him and do not raise any issues of “significant interest to the public or a substantial section of the public”.
On this basis the application for review is declined. The filing fee is outstanding and must be paid before the appeal can be progressed.
The Application for Dispensation with Security for Costs
Mr De Vries’s application for dispensation from security for costs also relies on his alleged impecuniosity. As noted by the Deputy Registrar, an application for dispensation of security for costs raises different issues to an application for waiver of a filing fee. That is because security protects the interests of respondents, who should not be drawn into meritless appeals without some protection from the costs they entail.[3]
[3]Reekie v Attorney-General [2014] NZSC 63, [2014] 1 NZLR 737 at [39].
The Supreme Court in Reekie v Attorney-General held the test for dispensing with security is whether it would be “right to require the respondent to defend the judgment under challenge without the usual protection as to costs provided by security”.[4] Here, Mr De Vries’ appeal is based on wide-ranging allegations about the conduct of the respondent in pursuing debts owed to it by Mr De Vries, and about the validity of judgments in 2011 obtained by the respondent in the District Court on that debt. They do not appear to be particularly strong grounds of appeal, and not ones that a reasonable and solvent litigant would pursue.[5]
[4]At [21].
[5]At [35].
Further, the interests of the respondent must be considered. There is no evidence that Mr De Vries has complied with the bankruptcy notice issued by the respondent, which suggests his solvency is in doubt. In these circumstances, the respondents ought to be entitled to some protection from the costs of an appeal, especially given the debts they are already owned by Mr De Vries.
I thus decline the application for review of the Deputy Registrar’s decision declining to dispense with security for costs.Security for costs remains fixed at $6,600 and must be paid by 26 May 2017.
Result
The application for an extension of time to bring an application for dispensation of security for costs is granted.
The application for review of the Deputy Registrar’s decision not to waive the filing fee for the appeal is dismissed. The application for review of the Deputy Registrar’s decision not to dispense with security for costs for the appeal is also dismissed.
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