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

1. 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].

2. 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

1. 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 737.

   [3]At [31].

2. The Court also ruled that the review function of the judge in relation to security for costs is to be exercised de novo.[4]

The Deputy Registrar’s decision

[4]At [23].

1. On 15 September 2022 Ms Foster sent an email to the Registry requesting “a review of decision pursuant to r 35(6) relating to a review of the security costs being [waived]”.  No grounds were provided for that request which the Deputy Registrar treated as an application to dispense with the requirement to pay security for costs.  The respondents opposed the application.  Their counsel drew attention to the fact that costs and disbursements of $14,068.50 awarded in their favour in the High Court remained unpaid.

2. After reference to the relevant principles in Reekie, the Deputy Registrar noted the absence of documentation establishing impecuniosity.  However she observed that if an assessment of other factors led to the conclusion that security should not be dispensed with even if Ms Foster were presumed impecunious, there would be no point in requesting the necessary financial information.

3. Turning to the merits of the appeal the Deputy Registrar considered that the Judge’s conclusion, that Ms Foster’s claim arose within the employment relationship and work context and was therefore within the exclusive jurisdiction of the Authority, was inescapable.  She concluded:

   [23]     In my view, the appeal has no realistic prospect of success, and I do not consider a reasonable and solvent litigant would pursue it.  I also consider no substantive issue of public interest arises in the appeal.  There is therefore no justification to dispense with security for costs, even if Ms Foster were to establish that she has no means to pay it.  The respondents should not be required to defend the appeal without the usual amount of security for their costs.

Discussion

1. On 29 October 2022 Ms Foster sent an email to the Registry containing a request for review in identical terms to that in her email of 15 September 2022.  No grounds in support of the application for review of the Deputy Registrar’s decision were provided. 

2. Section 161(1) of the Act recites the Authority’s exclusive jurisdiction to make determinations about employment relationship problems.  Section 161(3) provides that, except as provided in the Act, no court has jurisdiction in relation to any matter that is within the exclusive jurisdiction of the Authority. 

3. The respondents contended that Ms Foster’s appeal is wholly without merit as the argument concerning jurisdiction, which it is assumed Ms Foster wishes to advance, must be determined in the respondents’ favour in light of the recent Supreme Court decision in FMV v TZB.[5]  In my view that submission is plainly sound.  I do not consider that a reasonable and solvent litigant would proceed with an appeal on an issue in respect of which there is such clear authority at the highest appellate level.  Consequently the Deputy Registrar’s decision was correct.

Result

[5]FMB v TZB [2021] NZSC 102, [2021] 1 NZLR 466.

1. The application to review the Deputy Registrar’s decision declining to dispense with security for costs is declined.

2. Security for costs of $7,060 is payable by 25 January 2023.

Solicitors:
Tompkins Wake, Rotorua for First and Second Respondents