Foster v Wilson - [2022] NZCA 609

IN THE COURT OF APPEAL OF NEW ZEALAND

I TE KŌTI PĪRA O AOTEAROA

CA455/2022
[2022] NZCA 609

BETWEEN	SIOBHAN FOSTER Applicant
AND	ANDREW WILSON First Respondent GRAHAM BROWNRIGG Second Respondent

Counsel:	Applicant in person F C K Wood for First and Second Respondents
Judgment: (On the papers)	7 December 2022 at 11.30 am

JUDGMENT OF BROWN J
(Review of Deputy Registrar’s decision)

AThe application to review the Deputy Registrar’s decision declining to dispense with security for costs is declined.
BSecurity for costs of $7,060 is payable by 25 January 2023.

____________________________________________________________________

REASONS

Introduction

Ms Foster’s employment by Rotorua Economic Development Ltd (RED) was terminated in January 2022 on account of her non-compliance with RED’s COVID‑19 vaccination policy. Her proceeding in the High Court for damages for breach of the New Zealand Bill of Rights Act 1990 (NZBORA), breach of contract and other grounds was dismissed on 10 August 2022 by Associate Judge Taylor for the reason that her claim fell within the exclusive jurisdiction of the Employment Relations Authority (the Authority) pursuant to s 161 of the Employment Relations Act 2000 (the Act).[1]
[1]Foster v Wilson [2022] NZHC 1955 at [36].
Ms Foster’s notice of appeal was accepted for filing on 5 September 2022. Security for costs was set at $7,060 under r 35 of the Court of Appeal (Civil) Rules 2005 (the Rules). Ms Foster’s application to dispense with security for costs was declined in a decision dated 25 October 2022. The Deputy Registrar ordered that security for costs be paid by 15 November 2022. Ms Foster seeks a review of that decision under r 5A(3) of the Rules.

Relevant principles

The principles applicable to dispensation from security for costs were reviewed by the Supreme Court in Reekie v Attorney-General.[2] The Court stated that the Registrar should dispense with security if of the view that it is right to require the respondent to defend the judgment under challenge without the usual protection as to costs provided by security.[3] The Court explained:
[35] … we consider that the discretion to dispense with security should be exercised so as to:
(a)preserve access to the Court of Appeal by an impecunious appellant in the case of an appeal which a solvent appellant would reasonably wish to prosecute; and
(b)prevent the use of impecuniosity to secure the advantage of being able to prosecute an appeal which would not be sensibly pursued by a solvent litigant.
A reasonable and solvent litigant would not proceed with an appeal which is hopeless. Nor would a reasonable and solvent litigant proceed with an appeal where the benefits (economic or otherwise) to be obtained are outweighed by the costs (economic and otherwise) of the exercise (including the potential liability to contribute to the respondent’s costs if unsuccessful). As should be apparent from what we have just said, analysis of costs and benefits should not be confined to those which can be measured in money.
[2]Reekie v Attorney-General [2014] NZSC 63, [2014] 1 NZLR…

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.

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Details

Case: [2022] NZCA 609
Decision Date: 7 December 2022 at 11.30 am

CaseChat Overview and Summary

Foster v Wilson is an appeal against a decision made by the Deputy Registrar in the Court of Appeal of New Zealand. Siobhan Foster, the applicant, seeks a review of the decision declining to dispense with security for costs in her appeal against the termination of her employment by Rotorua Economic Development Ltd. The respondents are Andrew Wilson and Graham Brownrigg, who were involved in the proceedings at the High Court level. The central issue before the court was whether the Deputy Registrar's decision declining to dispense with security for costs was correct.

The legal issues revolved around the principles governing the dispensation of security for costs, as outlined in the Court of Appeal (Civil) Rules 2005 and the Supreme Court decision in Reekie v Attorney-General. Specifically, the court had to determine if the Deputy Registrar's decision was in line with the principles that require the Registrar to dispense with security if it is right to require the respondent to defend the judgment without the usual protection as to costs provided by security. The court also needed to consider the implications of the Employment Relations Act 2000 and the Employment Relations Authority's exclusive jurisdiction over employment relationship problems.

The court, in its reasoning, confirmed that the Deputy Registrar's decision was correct. The Deputy Registrar had concluded that the appeal had no realistic prospect of success and that no reasonable and solvent litigant would pursue it. This conclusion was based on the inescapable finding by the High Court judge that the applicant's claim fell within the exclusive jurisdiction of the Employment Relations Authority. The Court of Appeal judge agreed that the recent Supreme Court decision in FMB v TZB provided clear authority supporting the High Court's jurisdictional finding. Therefore, the Deputy Registrar's decision not to dispense with security for costs was upheld.

In summary, the Court of Appeal declined the applicant's application to review the Deputy Registrar’s decision. The applicant is required to pay security for costs of $7,060 by 25 January 2023.

Orders