Dorrance v Linkpeople Limited
[2023] NZHC 1597
•26 June 2023
IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY
I TE KŌTI MATUA O AOTEAROA ŌTAUTAHI ROHE
CIV-2022-409-592
[2023] NZHC 1597
BETWEEN MARISHA ELIZABETH DORRANCE
Appellant
AND
LINKPEOPLE LIMITED
Respondent
Hearing: 15 May 2023 (by way of telephone conference) Appearances:
Appellant - In Person
K A Lomas for Respondent
Judgment:
26 June 2023
JUDGMENT OF EATON J
(On an application to Dispense with Security for Costs)
This judgment was delivered by me on 26 June 2023 at 2.30 pm pursuant to Rule 11.5 of the High Court Rules
Registrar/Deputy Registrar Date:
DORRANCE v LINKPEOPLE LTD [2023] NZHC 1597 [26 June 2023]
Introduction
[1] On 19 November 2019, Ms Dorrance brought a claim in the Tenancy Tribunal against Linkpeople Ltd (Linkpeople). On 28 February 2022, that claim was struck out by an adjudicator of the Tenancy Tribunal. Ms Dorrance filed an appeal in the District Court against that decision. At a case management conference held on 13 September 2022, Judge Gilbert ordered Ms Dorrance pay security for costs on the appeal in the sum of $955. Ms Dorrance then filed an appeal in this Court against the security for costs decision.
[2] Case management conferences were held in this Court on 13 February 2023 before Dunningham J, and on 3 April 2023 before Harland J. Ms Dorrance is self- represented. Her application for the appointment of amicus curiae has been declined. Her application to dispense with security for costs on this appeal requires determination.
[3] Ms Dorrance has filed an affidavit as to her financial means. Both Ms Dorrance and Mr Lomas have filed fulsome submissions. A hearing was conducted at a telephone conference on 15 May 2023.
Legal principles
[4] Pursuant to r 20.13(2) of the High Court Rules 2016, a Judge must fix security for costs at the case management conference relating to the appeal unless the Judge considers that in the interests of justice no security is required. That rule does not apply to an appeal for which an appellant has been granted legal aid under the Legal Services Act 2011.1
[5] There is a presumption that, unless the appellant is legally aided, they will be required to pay security for costs in case the appeal is unsuccessful. For a standard appeal, being a Category 2 case with an estimated half-day hearing time required, security would be $1,195. Costs may be waived. It is for the appellant to show that waiver is in the interests of justice. In RIG v Chief Executive of the Ministry of Social
1 High Court Rules 2016, r 20.13(1).
Development, the Court of Appeal confirmed that impecuniosity of itself does not justify a waiver but may provide a reason to reduce the quantum of security.2 Exceptional circumstances are required to justify a waiver. The Court shall have regard to the importance of the issues raised and the public interest in those issues being determined. Ultimately, if the Court considers there to be an arguable case on appeal, a waiver may be granted to an impecunious litigant. The Supreme Court on appeal endorsed those principles.3
[6] In Reekie v Attorney-General, the Supreme Court found that applications to dispense with security are usually made on two broad grounds:4
(a)where costs are unlikely to be ordered against an appellant in any event; or
(b)where an appellant either cannot pay or will suffer severe hardship if payment is required.
[7] In Reekie, the Court recognised that the presumption in favour of an appellant providing security for costs imposes some discipline on appellants and discourages litigation which is disproportionate to the occasion.5 The Court further recognised that an appellant who will not be able to meet a subsequent order for costs is free of the constraints that affect other litigants, and that freedom carries with it the potential for injustice to a respondent.6 The Court confirmed that it is for the appellant to show impecuniosity and/or establish exceptional circumstances.7
Analysis
[8] Ms Dorrance does not claim to be legally aided. She therefore carries the onus of establishing that a waiver of security for costs is in the interests of justice. If a
2 RIG v Chief Executive of the Ministry of Social Development [2010] NZCA 370, (2010) 20 PRNZ 703.
3 G v Chief Executive of the Ministry of Social Development [2010] NZSC 141, (2010) 20 PRNZ 705.
4 Reekie v Attorney-General [2014] NZSC 63, [2014] 1 NZLR 737 at [19].
5 Above n 4, at [33].
6 Above n 4, at [33].
7 Above n 4, at [27].
waiver is not granted, Ms Dorrance will be required to pay the sum of $1,195 as security for costs.
[9] Ms Dorrance says she is impecunious and that her appeals against both the decision of the Tenancy Tribunal and Judge Gilbert have merit. I deal with both submissions.
Impecuniosity
[10] Ms Dorrance deposes that her only source of income is a supported living payment from the Ministry of Social Development (MSD) in the sum of $255.68 a week. She says MSD assessed her medical/disability costs in 2020 as being “around
$150 per week”. She deposes to a monthly phone cost of $25, monthly child support costs of $20, and regular storage costs.
[11] I accept Ms Dorrance’s evidence that she is impecunious and that as a consequence, if she is required to pay security for costs on this appeal, in reality she will not be in a position to pursue the appeal and will consequentially have to pay the security of $955 as ordered in the District Court.
Merit
[12] In determining whether to require Ms Dorrance to pay security for costs, the Judge recorded Ms Dorrance had not applied for legal aid in relation to the District Court appeal. The Judge referred to r 18.13 of the District Court Rules providing that, on appeal, security for costs is required to be paid by the appellant unless the Judge considers that it is in the interests of justice for that requirement to be waived. The Judge recorded Ms Dorrance’s submission that she was “of limited means” and her assertion that her appeal had a strong prospect of success. With reference to authority, the Judge observed that security was the norm and exceptional circumstances are generally required to justify a waiver. The Judge weighed the importance of the issues raised and any public interest as relevant factors and that impecuniosity of itself would not justify a waiver but may be a reason to reduce the quantum of security.
[13] Judge Gilbert was not persuaded the appeal engaged any matter of public importance, given the decision to strike out the proceedings in the Tenancy Tribunal was made on the grounds of repetitive delays by Ms Dorrance to comply with timetabling orders and other requirements imposed by the Tribunal. The Judge expressed his disagreement with Ms Dorrance’s assessment that her appeal was “almost certain to succeed”.
[14] Judge Gilbert accepted Ms Dorrance had limited means. He reduced the amount of security payable by half and extended the time for paying security to two months.
[15] Ms Dorrance submits the Judge was wrong to rely on the District Court Rules. That submission is without merit.
[16] Ms Dorrance submits the respondent’s counsel breached his duties to the Court in not putting all information, said by Ms Dorrance to be “relevant and significant law”, before the Judge. That submission is also without merit. The default position is security must be fixed and paid. The onus was on Ms Dorrance to persuade the Judge to dispense with security. Counsel for the respondent was under no obligation to advance legal submissions.
[17] Next, Ms Dorrance alleged procedural unfairness. She submits the Judge should have convened an interlocutory hearing or, alternatively, considered submissions and evidence on the papers. But, Ms Dorrance knew security for costs was to be addressed at the case management conference, and it was appropriate that the Judge dealt with the issue at the conference.
[18] Ms Dorrance alleges the Registrar changed the format for the case management conference and that those changes caused her anxiety and distress. She says the Judge stopped her from addressing the merits of her appeal. I do not accept there was any unfairness to Ms Dorrance. It is clear from the decision of the Judge that he heard and considered the submissions advanced by Ms Dorrance.
[19] Ms Dorrance takes issue with the Judge having regard to “the procedural history of this matter” in determining whether Ms Dorrance should pay security. I disagree. The procedural history, as summarised in the Tribunal decision under appeal, was relevant. That history is a matter of record and features multiple adjournments and extensions to accommodate Ms Dorrance over a prolonged period. The inevitable consequence has been cost to the respondent. Those circumstances are relevant to the assessment of security on an appeal.
[20] Finally, Ms Dorrance takes issue with the Judge referring to her as having previously practised as a lawyer. That reference was made in relation to the shortcomings within her grounds of appeal. The Judge did not consider Ms Dorrance’s former career in fixing security.
[21]I am not persuaded the appeal against the decision of Judge Gilbert has merit.
[22] Because the parties advanced submissions as to the merit of the appeal against the Tribunal decision, I briefly deal with that issue.
[23] Ms Dorrance’s application was filed in the Tenancy Tribunal in November 2019. It was struck out on 28 February 2022 on the grounds of delay and abuse of process. Both the landlord and Ms Dorrance had filed submissions on the strikeout application. The Tribunal found it had “bent over backwards” to allow Ms Dorrance to properly plead her case and that her repeated requests for adjournments and extensions of times gave rise to an abuse of process.
[24] I have reviewed the evidence of James Gallen filed in the District Court and summarising the various procedural steps of the Tenancy Tribunal proceeding. By way of summary, the Tenancy Tribunal application had hearing dates of 18 November 2019, 21 February 2020, 20 July 2020, 9 September 2020, 22 October 2020, 4 November 2020, 23 November 2020, 3 February 2021, 8 April 2021, 24 June 2021, 12 August 2021, and 2 December 2021.
[25] Mr Gallen deposes that on 29 October 2021, Ms Dorrance’s revised claim was due. That was not filed, but Ms Dorrance filed yet another application for an
adjournment of the hearing. On 1 February 2022, Mr Gallen filed an application to strike out the proceedings. Ms Dorrance responded in writing, and, on 28 February 2022, the Tenancy Tribunal adjudicator struck out the claim.
[26] I acknowledge that on 23 November 2020, the hearing was adjourned, and on that occasion the respondent had applied for permission to brief legal counsel having regard to the complexity of the proceeding and the volume of material filed by Ms Dorrance. Mr Gallen says Ms Dorrance had filed a large amount of material, including submissions running to 73 pages. Otherwise, Ms Dorrance was seeking the adjournments and extensions.
[27] That history demonstrates that the manner in which Ms Dorrance has conducted her claim against the respondent to date has inevitably given rise to much unnecessary cost. Having reviewed the original and amended notices of appeal filed in the District Court, it is very likely the pattern of overly complicated, unnecessarily time-consuming and costly litigation will continue.
[28] I accept the submission made by Mr Lomas that the respondent has been put to unnecessary and disproportionate costs and is entitled to a level of protection against a wide-ranging claim brought by a litigant who chooses to self-represent.
[29] Ms Dorrance has not persuaded me she has an arguable case on appeal. Notwithstanding Ms Dorrance’s impecuniosity, I am not persuaded that it is appropriate to waive security for costs on this appeal.
Result
[30] Ms Dorrance is to pay security for costs on this appeal in the sum of $1,195. Security is to be paid on or before 20 July 2023. If security is not paid by that date, the respondent may apply for an order dismissing the appeal.
[31] If security is paid as directed, I will make further case management directions on the papers.
...................................................
Eaton J
Solicitors:
Braun Bond & Lomas Ltd, Hamilton
Copy to:
Appellant – Ms Dorrance
2
0