Dickson v Real Estate Agents Authority - [2024] NZHC 645

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

I TE KŌTI MATUA O AOTEAROA TE WHANGANUI-A-TARA ROHE

CIV-2024-485-134

[2024] NZHC 645

UNDER
Judicial Review Procedure Act

Part 30 of the High Court Rules 2016 New Zealand Bill of Rights Act 1990

IN THE MATTER OF

an application for judicial review of Practice Rules and decisions made under the Real

Estate Agents Act 2008

BETWEEN

JANET ELIZABETH DICKSON

Applicant

AND

REAL ESTATE AGENTS AUTHORITY

First Respondent

REGISTRAR OF LICENSED REAL ESTATE AGENTS

Second Respondent

ASSOCIATE MINISTER OF JUSTICE

Third Respondent

On the papers:

Counsel:

N Pender and B Morten for Applicant

A S Butler KC, S A Bishop and T G Bain for First and Second Respondents

Judgment:

22 March 2024

JUDGMENT OF GRAU J

[Application for security for costs]

An application for security for costs

[1] Mrs Janet Dickson has applied for judicial review of practice rules made by the Real Estate Agents Authority requiring her and other licensed real estate agents to

DICKSON v REAL ESTATE AGENTS AUTHORITY [2024] NZHC 645 [22 March 2024]

undertake, as part of their continuing education, a mandatory course called Te Kākano. She also challenges the Registrar of Licensed Real Estate Agents’ refusal to exempt her from undertaking the course. A one-day hearing has been set down, on 18 June 2024.

[2] The first and second respondents, the Real Estate Agents Authority and the Registrar of Licensed Real Estate Agents (the respondents), have applied to the Court for an order that Mrs Dickson pay security for costs under r 5.45 of the High Court Rules 2016 (the HCR). They seek $15,535 in security for costs (or any figure the Court deems just in all of the circumstances).

[3] The application is made on the basis that “there is reason to believe [Mrs Dickson] will be unable to pay the costs of the respondents if [she is] unsuccessful in the proceeding”. The respondents primarily rely on Mrs Dickson’s affidavit sworn in support of her application for judicial review which refers to a risk of financial hardship to her if her real estate licence is cancelled as a result of an unsuccessful outcome in this proceeding.

[4] This matter was referred to me as Duty Judge and counsel requested the application to be dealt with on the papers.

Applicable principles

[5]Rule 5.45 of the HCR provides jurisdiction for an order for security for costs.

[6] The decision to order security for costs requires the Court to balance the competing interests of Mrs Dickson, who has a right of access to the court and to present her case, against the respondents’ right not to be unreasonably exposed to an unreasonable costs risk. The balancing of the interests of the parties is the overriding consideration.1

[7] Another consideration in this case is that the substantive proceeding is an application for judicial review. The right to justice is affirmed by s 27 of the

1 Highgate on Broadway Limited v Devine [2012] NZHC 2288, [2013] NZAR 1017…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2024] NZHC 645
Decision Date: 22 March 2024

CaseChat Overview and Summary

Janet Dickson has applied for judicial review of certain practice rules made by the Real Estate Agents Authority, which require her and other licensed real estate agents to undertake a mandatory course called Te Kākano as part of their continuing education. She also challenges the Registrar of Licensed Real Estate Agents' refusal to exempt her from undertaking the course. The Real Estate Agents Authority and the Registrar of Licensed Real Estate Agents have applied for an order that Mrs Dickson pay security for costs under r 5.45 of the High Court Rules 2016, seeking $15,535 in security for costs.

The court considered the application on the papers. The court needed to balance Mrs Dickson's right of access to the court against the respondents' right not to be unreasonably exposed to an unreasonable costs risk. The court noted that the substantive proceeding is an application for judicial review, and the right to justice is affirmed by s 27 of the New Zealand Bill of Rights Act 1990. The court found that the reasons given by the respondents were too slim to provide a basis for an order for security for costs. The court concluded that the respondents had not met the threshold required by r 5.45 of the High Court Rules 2016. The application for security for costs is declined, and issues of costs are to be determined following the substantive hearing.

Orders