Legal Research
Cases
Easton v Broadcasting Commission

Easton v Broadcasting Commission

Case [2009] NZCA 252 17 June 2009

No judgment structure available for this case.

Type to search within this case.

IN THE COURT OF APPEAL OF NEW ZEALAND
CA793/2008
[2009] NZCA 252
BETWEENBENJAMIN MORLAND EASTON

Applicant

ANDBROADCASTING COMMISSION

First Respondent
ANDBROADCASTING STANDARDS AUTHORITY

Second Respondent

Counsel:Appellant in Person

J A Douglas for First Respondent
R E Brown and M J McGoldrick for Second Respondent

Judgment:17 June 2009 at 11.30 am

JUDGMENT OF ARNOLD J

The application for review of the Registrar’s decision is allowed in part. Security for costs is fixed at $3,000.
REASONS

Introduction
[1]       The appellant brought judicial review proceedings against the first and second respondents arising out of an interview broadcast by Radio New Zealand which he claimed was discriminatory of men. Dobson J struck the proceedings out. He did so because neither respondent had exercised a statutory power of decision and because, as a result of the nature of the relief sought, the proceedings were “academic” as far as the respondents were concerned – in effect, the appellant sought an advisory opinion from the Court: HC WN CIV-2008-485-2270 1 December 2008. The appellant has appealed against Dobson J’s decision.
[2]       The Registrar set security for costs on the appeal at $9,480, reflecting the fact that there are two respondents. The appellant applied to have security dispensed with under r 35(6)(c) of the Court of Appeal (Civil) Rules 2005. By letter dated 18 May 2009 the Registrar refused to dispense with security but reduced the amount payable to $4,740. The appellant now seeks a review of the Registrar’s decision.
Approach to be adopted
[3]       The authorities establish that an applicant must show exceptional circumstances to obtain a dispensation from the obligation to give security for costs. Here the Registrar has determined that there are no such exceptional circumstances. The question for me is whether that decision was open to her in the circumstances of this case.
Discussion
[4]       The appellant filed a lengthy and discursive submission in support of his application for a dispensation. The primary basis for his application appears to be impecuniosity.
[5]       The appellant receives an unemployment benefit and appears to have little else in the way of income or assets. I accept that he is impecunious. However, impecuniosity does not automatically mean that security for costs should be waived, although it may well lead to a reduction in the amount ordered: see McLeod v Housing New Zealand Corporation Ltd HC AC M256/02 9 October 2002 at [9]. The touchstone is whether the interests of justice require that a waiver or dispensation be given: see Blanshard v The National Life Association of Australasia Limited HC AK CIV-2001-404-001961 10 December 2003 at [8]. It is relevant to consider whether the appellant’s appeal rights will be rendered nugatory if no waiver is granted, but it is also relevant to consider the merits of the appeal to see whether the appellant has an arguable case. A respondent should not be put to the expense of arguing a meritless appeal without some protection for its costs.
[6]       The appellant suggests that the appeal raises questions of public importance.…

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.

Continue reading Easton v Broadcasting Commission

Details

AGLC: Easton v Broadcasting Commission [2009] NZCA 252
Case: [2009] NZCA 252
Decision Date: 17 June 2009

CaseChat Overview and Summary

The case of Easton v Broadcasting Commission involves Benjamin Morland Easton, who is the applicant, and two respondents: the Broadcasting Commission and the Broadcasting Standards Authority. Easton sought judicial review of a decision made by the Registrar of the Court of Appeal regarding the amount of security for costs set on his appeal. The original proceedings arose from an interview broadcast by Radio New Zealand, which Easton claimed was discriminatory against men. The High Court dismissed his case, and he appealed this decision. The Registrar set security for costs at $9,480, which Easton sought to have reduced or waived. The court had to decide whether the amount of security for costs was appropriate and whether there were exceptional circumstances justifying a waiver or reduction.

The central legal issue before the court was whether the appellant had demonstrated exceptional circumstances that would warrant a dispensation from the obligation to provide security for costs. The court examined the appellant's financial situation, the merits of the appeal, and whether the appeal raised questions of public importance. The court also considered the potential impact on the respondents if the security for costs was waived or significantly reduced.

In delivering the judgment, the court found that the appellant, while impecunious, had not shown exceptional circumstances warranting a waiver of security for costs. The court noted that the appeal had no realistic prospect of success, as the original proceedings were dismissed on the basis that no statutory power of decision had been exercised by the respondents. The court agreed with the Registrar's decision to set security for costs, but reduced the amount to $3,000 to balance the protection of the respondents' costs and the appellant's ability to proceed with the appeal. The court held that the amount set by the Registrar, though reduced, was appropriate given the circumstances.

The final orders of the court allowed the application for review of the Registrar's decision in part, setting the security for costs at $3,000. This decision ensures that the respondents are protected from potential costs if the appeal proves to be meritless, while also allowing the appellant to proceed with the appeal if he can meet the reduced security requirement.

Orders