Deliu v National Standards Committee (no 1)
[2013] NZCA 76
•26 March 2013
| IN THE COURT OF APPEAL OF NEW ZEALAND |
| CA51/2013 [2013] NZCA 76 |
| BETWEEN FRANCISC CATALIN DELIU |
| AND NATIONAL STANDARDS COMMITTEE (NO 1) |
| AND NEW ZEALAND LAW SOCIETY |
| Counsel: Applicant in person |
| Judgment: 26 March 2013 at 2.30 pm |
(On the papers)
JUDGMENT OF STEVENS J
(Review of Registrar’s decision to decline to defer security for costs)
AThe application to review the Registrar’s decision refusing to defer the date by which security must be paid is dismissed.
BThe applicant is to pay into Court the sum of $5,880.00 by way of security for costs within 20 working days from the date of this judgment.
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REASONS
Introduction
On 31 January 2013 the applicant, Mr Deliu, filed a notice of appeal in this Court against certain interlocutory orders given in a judgment of Toogood J.[1] The New Zealand Law Society had applied to the Registrar of the High Court at Auckland for access to certain court files.[2] The application concerned 12 identified proceedings in the Auckland Registry and was advanced by way of an originating application by the respondents for access to Court documents. Such documents were sought in relation to disciplinary proceedings against the applicant.
[1]National Standards Committee (No 1) v Deliu [2012] NZHC 3378.
[2] Pursuant to r 3.13(2) of the High Court Rules.
By his notice of appeal the applicant sought various orders including inter alia an order in the nature of mandamus directed to the High Court Judge and an order directing joinder of CIV‑2012‑404-3785 with CIV-2012-404-4030 and CIV‑2012-404-4409 (being collateral judicial review proceedings challenging certain decisions of the second respondent), with 3785 to be heard on the third day of a substantive fixture set down for 10–12 June 2013.
On 4 February 2013 security for costs was set at $5,880.00 for the appeal. On 11 February 2013 the applicant applied to the Registrar seeking a deferment of the date by which security must be paid.[3]
The Registrar’s decision
[3] In reliance on r 35(6) of the Court of Appeal (Civil) Rules 2005.
The Registrar declined the application.[4] She found that the circumstances did not warrant the deferment of the time for payment of security for costs. She stated:
I am of the view there is nothing unusual or exceptional in this appeal that would warrant the deferral of payment of security for costs. The appeal has been lodged and should be progressed in this Court in a timely manner.
[4] By letter dated 18 February 2013.
The applicant applied for a review of the Registrar’s decision. There is a question as to whether the application for review was lodged outside the 10 working day period provided for in the Court of Appeal (Civil) Rules 2005.[5] The formal application for a review filed on 7 March 2013 was late, but I consider that the email correspondence from the applicant on 20 February 2013 was sufficient to trigger the review power of a judge under r 7(2).
Security for costs - principles
[5] Rule 7(3).
In the normal course, appellants in civil proceedings in this Court are required to pay security for costs within 20 working days after the notice of appeal has been filed.[6] If an appellant wishes to apply to the Registrar for a waiver or deferment of security for costs, he or she must do so within 20 working days of filing the appeal.[7]
[6] Rule 35(2)–(3).
[7] Rule 35(6) and (7).
The Registrar may reduce, dispense with or defer security “if satisfied that the circumstances warrant it”.[8]
[8] Rule 35(6).
In Hills v Public Trust Hammond J remarked that the range of options available to the Registrar recognises that “an absolute rule can work an injustice”.[9] In certain circumstances, it may be appropriate to defer, but not to dispense with, security for costs. Recently, this Court deferred security for costs when more time was required to enable the appellant to seek legal representation.[10]
Discussion
[9] Hills v Public Trust [2010] NZCA 401, (2010) 20 PRNZ 707 at [12].
[10] New Zealand Cards Ltd v Ramsay [2012] NZCA 285 at [23(c)].
I consider that the Registrar was right to refuse to defer the date by which security for costs must be paid in this case.
Having considered all of the material that was before the Registrar, I am satisfied that the applicant has not made out a proper case for deferment. No adequate grounds have been advanced justifying deferment. I agree with the findings made by the Registrar as set out in the passage quoted at [4] above.
In his correspondence with the Registrar following delivery of the Registrar’s decision, the applicant complained that the Registrar had made her decision based on the submissions of one side only, namely, on the basis of a memorandum dated 14 February 2013 received from counsel for the respondents. However, as the Registrar subsequently pointed out, a respondent is entitled to be given an opportunity to respond to the application. In this case the respondents chose to do so and it was then up to the Registrar to consider and determine the application. No further reply to the reply was called for. In addition, the Registrar had before her all of the applicant’s email correspondence with the Court, which clearly outlined his reasons for seeking a deferment. In any event, the applicant has now had the benefit of a review by a Judge.
The essence of the applicant’s argument is that he seeks that security for costs be deferred for the time being as he says he will be pursuing a stay of the High Court proceedings. He says that, depending on the outcome of that determination, he would decide whether to apply for an urgent date (if a stay is granted) or to seek to defer such an application until after the substantive High Court judgment has been rendered (if a stay is refused).
On its face this argument cannot be correct. The applicant has filed the appeal and must either progress it in a timely fashion or abandon it. It is not appropriate to leave the appeal sitting on the file unresolved pending the progress of other (separate) aspects of the case in judicial review proceedings in the High Court. This Court cannot hold up the progress of appeals indefinitely. The recent amendment to the Rules reducing from six months to three months the time after which an appeal will be treated as abandoned if the appellant has not applied for the allocation of a hearing date and filed the case on appeal is indicative of this Court’s policy of progressing appeals promptly.[11]
[11] See r 43.
On the question of timeliness of proceedings, it is to be observed that the present appeal arises in the context of disciplinary proceedings brought against the applicant under the Lawyers and Conveyancers Act 2006. It is in the public interest that all aspects of the conduct of such proceedings be dealt with promptly.[12]
Decision
[12] See s 3 and s 120(3) of the Lawyers and Conveyancers Act 2006.
The application for review of the Registrar’s decision not to defer the date for payment of security for costs is dismissed. Security for costs in the sum of $5,880.00 must be paid into Court within 20 working days of the date of this judgment. There is no order for costs on this application.
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