Easton v Broadcasting Commission

[2009] NZCA 252

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.  The first and second respondents, however, argue that the appeal is wholly without merit.

[7]       I have considered Dobson J’s decision.  He records that the proceedings are part of a larger campaign by the appellant to challenge what he sees as state‑sponsored gender bias against men.  He notes that the proceedings seek to challenge the consistency of various provisions of the Broadcasting Act 1989 with the anti-discrimination provisions in the New Zealand Bill of Rights Act 1990, rather than challenging statutory powers of decision.  As I have already noted, the relief sought is in the nature of a declaration directed at the Minister of Broadcasting, which means that the relief has little direct significance for the respondents.  I agree with Dobson J that the proceedings have no realistic prospect of success.  As a consequence, the appeal has no prospect of success either.  In those circumstances, the respondents should not be required to participate in the appeal without some protection for their costs.

[8]       Further, if the appellant is ultimately unable to pursue the present appeal because he cannot provide security, he will not be prevented from ventilating his concerns.  I note that following the broadcast at issue, the appellant complained to Radio New Zealand.  When it rejected his complaint, the appellant took the matter to the Authority.  When the Authority rejected his complaint, the appellant filed an appeal against its decision in the High Court.  That appeal was adjourned sine die pending the resolution of the judicial review proceedings, but could presumably be reactivated should this appeal not proceed. 

[9]       In the result, then, I consider that the Registrar was right to require the appellant to pay an amount by way of security for costs.  While I understand the Registrar’s reasons for fixing the amount at $4,740, I propose to reduce that to $3,000.  This amount provides some protection against costs for the respondents, but at the same time may enable the appellant to proceed with what he regards as an appeal of some consequence.

Solicitors:

Minter Ellison Rudd Watts, Wellington for First Respondent
Bell Gully, Wellington for Second Respondent