Edwards v Wellington Regional Council
[2011] NZCA 260
•7 June 2011
| IN THE COURT OF APPEAL OF NEW ZEALAND |
| CA176/2011 [2011] NZCA 260 |
| BETWEEN J A EDWARDS |
| AND WELLINGTON REGIONAL COUNCIL |
| Counsel: Applicant in person |
| Judgment: 7 June 2011 at 10.30 am |
JUDGMENT OF ARNOLD J
The application for review of the Registrar’s decision refusing to waive the payment of security for costs is dismissed.
REASONS
Introduction
The applicant, Mr Edwards, filed an appeal and applied to the Registrar of the Court for a dispensation from the requirement to pay security for costs.[1] The Registrar declined his application. This is an application for review of that decision.
Background
[1] Court of Appeal (Civil) Rules 2005, r 35(6)(c).
Mr Edwards filed a proceeding in the High Court against the Wellington Regional Council (the Council), challenging the validity of its plans to reconstruct the Te Maura lakes, which are part of the water supply system for the greater Wellington region. The Council applied to have the proceeding struck out as disclosing no arguable or tenable cause of action. In a judgment dated 11 March 2011 Ronald Young J declined to strike the proceeding out but stayed it until Mr Edwards filed a statement of claim that contained adequate pleadings for the Council to respond to (the stay decision).[2] He also directed that Mr Edwards obtain the leave of a judge before filing any further statement of claim.
[2] Edwards v Wellington Regional Council HC Wellington CIV-2010-485-2192, 11 March 2011.
Then, on 28 March 2011, Ronald Young J made a costs order of $6,768.00 against Mr Edwards (the costs decision) in relation to the hearing of the respondent’s strike out application.[3]
[3] Edwards v Wellington Regional Council HC Wellington CIV-2010-485-2192, 28 March 2011.
Mr Edwards filed an appeal against the stay decision in this Court on 28 March 2011. The notice of appeal requests that this Court set aside the stay decision in its entirety and grant an interim injunction to prevent the Council from taking any further action to raise the Te Marua lakes.
Security for costs was set at $5,560.00 on 29 March 2011. On 15 April 2011 Mr Edwards applied for dispensation from the requirement to pay security for costs on the ground that his appeal has been brought solely in the public interest. The respondent filed submissions opposing that application on 10 May 2011.
The Registrar’s Decision
The Acting Registrar declined to dispense with security in a letter dated 10 May 2011. She did not consider that Mr Edwards’s appeal raised issues of public interest. She also noted that, according to Ronald Young J, Mr Edwards had been unable to identify a proper claim with an adequate legal and factual basis.
Security for Costs - General Principles
In the normal course, appellants in civil proceedings in this Court are required to pay security for costs.[4] If an appellant wishes to apply to the Registrar for a waiver of security, he or she must do so within 20 days of filing the appeal.[5] The Registrar may vary or waive security “if satisfied that the circumstances warrant it”.[6]
[4]Rule 35(2).
[5]Rule 35(3) and (6).
[6]Rule 35(6).
Security for costs will be waived where it is in the interests of justice to do so. There must be some exceptional circumstance to justify waiver.[7] The appellant must honestly intend to pursue the appeal and it must be arguable, as respondents should not face the threat of hopeless appeals without provision for security. The importance of the issues raised in the appeal will be significant, as will the question whether there is any public interest in having them determined.[8] Impecuniosity alone is not usually sufficient to justify a waiver, but may be reason to reduce the quantum of security.[9]
Discussion
[7]Fava v Zaghloul [2007] NZCA 498 at [9].
[8]Creser v Official Assignee CA196/05, 12 June 2006 at [29].
[9]Fava v Zaghloul at [9]; Easton v Broadcasting Commission [2009] NZCA 252 at [5].
I consider that the Registrar was right to refuse to dispense with the requirement to pay security for costs.
The only ground which Mr Edwards advances in support of his application for a waiver is that his appeal has been brought in the public interest. While it may be that the underlying proceeding (if properly pleaded) would have a public interest character to it, in that it would relate to actions taken by the Council in relation to public water supplies, that does not mean that the present appeal engages the public interest. The appeal is from Ronald Young J’s decision to stay Mr Edwards’ proceeding until he files a proper statement of claim. Without a proper pleading it is not possible for the Court to reach a definitive view about the nature and strength of Mr Edward’s claim or for the Council to have proper notice of the case it is expected to answer. Ronald Young J described the Mr Edwards’ original pleading as “essentially a monologue detailing Mr Edwards’ concerns about the Wellington Regional Council’s policy and actions in respect of water in the region”.[10] The decision under appeal was simply aimed at achieving a properly pleaded claim.
[10] 11 March 2010 judgment at [1].
Against that background the proposed appeal has no real prospect of success. Ronald Young J stayed the proceeding because Mr Edwards had not identified any proper basis for a claim against the Council even though he had taken the opportunity to file an amended pleading. Mr Edwards’s notice of appeal does not advance that aspect, nor does it identify any error of law made by the Judge. In those circumstances it is difficult to see on what basis this Court could allow the appeal.
In the result, then, I consider that Mr Edwards has not raised any exceptional circumstance of the type that would justify a departure from the ordinary requirement to pay security. The Council should not face the threat of a hopeless appeal without provision for security.
Decision
The application for review of the Registrar’s decision as to security for costs is declined. Security for costs of $5,560.00 must be paid into Court within 20 working days of the date of this judgment. There is no order for costs on this application.
Solicitors:
Oakley Moran, Wellington for Respondent
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