Edmonds v Penno

[2024] NZHC 573

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IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY

I TE KŌTI MATUA O AOTEAROA ŌTAUTAHI ROHE

CIV-2023-409-353

[2024] NZHC 573

BETWEEN

KENNETH TAIPOTO EDMONDS

Appellant

AND

WENDY ANN PENNO

Respondent

Hearing:	14 March 2024 (Telephone Conference)
Counsel:	K T Edmonds — appellant in person T L Cook for Respondent
Judgment:	18 March 2024

JUDGMENT OF ASSOCIATE JUDGE LESTER

(in respect of application to dispense with security for costs)

EDMONDS v PENNO [2024] NZHC 573 [18 March 2024]

[1]                 In a Minute issued by Osborne J on 7 February 2024, his Honour timetabled the filing by the appellant, Mr Edmonds, of an application to waive the payment of security for costs on Mr Edmonds appeal. The notice of opposition was to be filed by 20 February 2024.

[2]                 The notice  of  opposition  was  filed  six  calendar  days  late  on  Monday  26 February 2024. Mr Edmonds objected to the opposition being read.

[3]Osborne J in his Minute of 7 February 2024 noted:

[2] Notwithstanding clear directions contained in the December Minute, including for the filing of any application for waiver of security for costs by 19 January 2024, Mr Edmonds had neither made any application nor provided security.

[4]                 Notwithstanding the above breach of order, Mr Edmonds was given an indulgence by the Court in being able to file his application by 13 February 2024.

[5]                 Having been given an indulgence in respect of the filing of the application,    I saw there being some balance in Ms Penno having an extension of time to file her opposition, particularly where there can be no prejudice arising from the late filing.

[6]Accordingly, there is an order that the notice of opposition will be read.

[7]                 At a telephone conference held on 14 March 2024, I asked Mr Edmonds if he wished to file anything further in relation to his application to waive security for costs. I also asked him if he wished for his application to be determined at an in-person hearing or on the papers that he had filed. Mr Edmonds said he did not wish to file any further papers and was content for his application to be dealt with on the papers. Ms Cook, counsel for the respondent, did not wish to file anything further.

[8]                 Mr Edmonds application for waiver refers to matters he would want to raise in respect of the substance of his appeal. He refers to there being a miscarriage of justice in his case. Mr Edmonds also provides evidence he is on a WINZ benefit, providing what appear to be screenshots of bank account deposits from WINZ.

[9]                 Mr Edmonds also complains about what he perceives to be his unfair treatment by other Judges in this Court and in the Family Court.

Relevant principles

[10]            Security for costs on appeal from the Family Court to this Court is governed by r 20.13 of the High Court Rules 2016 (the Rules). Under r 20.13(2), security must be fixed unless the Court considers it is in the interests of justice that no security is required.

[11]            The amount to be paid for security is set by a formula in 20.13(3) of the Rules, which is as follows:

The amount of security must be fixed in accordance with the following formula, unless the Judge otherwise directs:

(a ÷ 2) × b

where—

ais the daily recovery rate for the proceeding as classified by the Judge under rule 14.4; and

bis the number of half days estimated by the Judge as the time required for the hearing.

[12]            McGechan on Procedure at HR20.13.03 describes the principles governing the waiver of security stating:

An order will be made unless the appellant can show that it is in the interests of justice that no security be provided. Special circumstances will normally be required: Bernard v Space 2000 Ltd (2001)  15  PRNZ  138  (CA);  Denzel v ACC (2002) 16 PRNZ 584; Tapp v Chief Executive of the Department Work and Income (2002) 16 PRNZ 587; Thimbleby v Accident Compensation Corporation (2003) 16 PRNZ 1078.

The general broad test of “interest of justice” must be satisfied. In G v Chief Executive of the Ministry of Social Development [2010] NZSC 141, the Supreme Court endorsed the Court of Appeal’s general principles regarding security. Security is the norm, and exceptional circumstances are required to justify a waiver. The importance of the issues raised and the public interest in determining them should be taken into account. Impecuniosity by itself does not justify a waiver, although it may be a reason to reduce the quantum of security: RIG v Chief Executive of the Ministry of Social Development [2010] NZCA 370.

In Chantha v Wanganui Gas Ltd (2004) 17 PRNZ 736 (HC), the Court considered that it would have to be shown that the case was “deserving of     a consideration on appeal”. The Court was prepared to grant waiver to an impecunious litigant because it had  already  been  decided  that there  was an arguable case on appeal.

[13]            It is noteworthy that the principles record security is the norm — exceptional circumstances are required to justify a waiver and impecuniosity by itself does not justify a waiver but may be a reason to reduce quantum.

[14]            Applying the formula for fixing security set out above, the calculation would be as follows:

$2,390.00being the daily recovery rate for this proceeding (being an “ordinary” proceeding) —

÷ 2                  = $1,195.00

[15]            $1,195.00 is then multiplied by the number of half-days estimated as the time required for the hearing. I am told a half-day is the estimated hearing time, therefore the security Mr Edmonds would have to pay is $1,195.00.

[16]            I am satisfied nothing in Mr Edmonds’ application meets the threshold for the waiving of security. That Mr Edmonds is on a benefit is not of itself grounds to deprive the respondent of the protection of security. Here, there has been no determination that Mr Edmonds’ appeal is arguable. One would expect an appeal not to be brought unless it was at least arguable but the fact an appeal is arguable should not mean security is not payable. Such a rule would convert what is meant to be the straightforward application of a formula into a process where the merits of the appeal were routinely raised to resist the payment of security.

[17]Accordingly, I fix security in the sum of $1,195.00.

[18]            Pursuant to r 20.13(4) of the Rules, security must be paid to the Registrar of the High Court no later than 10 working days after the fixing of security.

[19]Costs are reserved.

Associate Judge Lester

Solicitors:

T Cook, Barrister, Christchurch

Copy to:
Mr J T Edmonds, self-represented Appellant