Estate of Churstain v Accident Compensation Corporation

[2010] NZCA 341

IN THE COURT OF APPEAL OF NEW ZEALAND

[2010] NZCA 341

AND BETWEEN            ESTATE OF JOANNE CHURSTAIN Intended Appellant

ANDTHE ACCIDENT COMPENSATION CORPORATION

Intended Respondent

Counsel:         Mr Crequer in person

Judgment:      2 August 2010 at 10.30 am

JUDGMENT OF ARNOLD J

The application for review of the Registrar’s refusal to waive the payment of

the filing fee is declined, the Court having no jurisdiction to hear the appeal.

REASONS

[1]      Mr  Crequer  has  applied  on  behalf  of  the  estate  of  Joanne  Churstain (the estate) for a dispensation from the requirement to pay the filing fee of $900. The Registrar has declined to waive the fee.   This is an application for review of that decision.

[2]      The background is that Mr Crequer brought claims on behalf of the estate before the District Court.   Dissatisfied with two decisions of that Court, he filed notices of appeal in the High Court at Auckland. He applied to the Registrar of that Court for a waiver of the applicable filing fees on the grounds that the appeals would

not be able to proceed without a waiver and issues of significant public interest were

ESTATE OF JOANNE CHURSTAIN V THE ACCIDENT COMPENSATION CORPORATION CA [2010] NZCA [2 August 2010]

involved.  The Registrar declined the application.  Mr Crequer then sought a review of that decision.

[3]      The review was conducted by Associate Judge Robinson pursuant to s 100B of the Judicature Act 1908.[1]   Fees in the High Court may be waived if the applicant is unable to pay the fee or the matter is one of genuine public interest and unlikely to proceed unless the fee is waived.[2]    The Associate Judge noted that Mr Crequer did not claim to be unable to pay the fee and there was no evidence that the appeal would be unlikely to proceed without a fee waiver.[3]  The Associate Judge was also not satisfied that the appeal sufficiently concerned the public interest.[4]

[1] Associate Judge Robinson treated the review as being one under the High Court Rules 2008, r 2.11.  However, r 2.11 does not apply in these circumstances: see Andrew Beck and others McGechan on Procedure (online looseleaf ed, Brookers) at [HR2.11.01].

[2] High Court Fees Regulations 2001, reg 6(2) and (4).

[3] Estate of Joanne Churstain v The Accident Compensation Corporation HC Auckland CIV-3009-488-787, 4 December 2009 at [6]. 

[4] At [7].

[4]      Mr Crequer sought to appeal that decision to this Court. He did not pay the filing  fee  but  sought  a  fee  waiver.    After  the  Deputy  Registrar  declined  his application Mr Crequer applied for review of her decision.

[5]      The merits or otherwise of the application need not be traversed as this Court lacks jurisdiction to hear the proposed appeal.   When he reviewed the Registrar’s decision, the Associate Judge made a decision in Chambers.[5]   In those circumstances the  proper  course  is  for  Mr  Crequer  to  seek  a  review  of  the  decision  in  the High Court.[6]

[5] High Court Rules 2008, r 1.3 “hearing in chambers”. 

[6] Judicature Act 1908, s 26P.

[6]      The application for review of the Registrar’s refusal to waive the filing fee is accordingly declined, the Court having no jurisdiction to hear the appeal.