Harrison v Harrison

[2015] NZCA 396

IN THE COURT OF APPEAL OF NEW ZEALAND

CA144/2015
[2015] NZCA 396

BETWEEN	PAULINE JANICE HARRISON Appellant
AND	GRAEME ROSS HARRISON AND ADRIENNE HARRISON Respondents
AND	OFFICIAL ASSIGNEE Additional Party

Counsel:

Appellant in Person
R O Parmenter for Respondents

Judgment:

(On the papers)

26 August 2015 at 3.30 pm

JUDGMENT OF WILD J
[Review of Registrar’s decision refusing to dispense with security for costs]

AThe application to review the Registrar’s decision refusing to dispense with security for costs is dismissed.

BThe applicant is to pay the sum of $5,880 by way of security for costs by Thursday 24 September 2015.

____________________________________________________________________

REASONS

1. The appellant, Ms Harrison, seeks review under s 7(2) of the Court of Appeal (Civil) Rules 2005 of a decision of the Registrar declining an application to dispense with security for costs. 

2. Ms Harrison’s substantive appeal is against the 24 February 2015 judgment of Associate Judge Osborne declining her application for orders suspending her adjudication as a bankrupt.[1]  Security for the costs of the appeal was fixed on 26 March at $5,880.  Ms Harrison applied to have security for costs dispensed with.  The Registrar declined this application in a decision on 12 May, and required security to be paid by 9 June. 

   [1]Harrison v Harrison [2015] NZHC 254.

3. On 10 June Ms Harrison applied for review by a Judge of the Registrar’s decision.  Through an oversight in the Registry, this application was not referred to me until 21 August.

4. Since 10 June, Ms Harrison has also applied for an extension of time to file her case on appeal and apply for the allocation of a hearing date.  The respondents are prepared to consider consenting to a short extension of time, but only after security for costs is paid.  And, of course, Ms Harrison cannot apply for the allocation of a hearing date under r 38(1) while she remains in default of her obligation to pay the security for the costs of this appeal.  I am therefore dealing with Ms Harrison’s review application urgently.

The Registrar’s decision

1. The Registrar gave the following reasons for declining Ms Harrison’s application:

   (a)Ms Harrison had not claimed impecuniosity as a ground for her application, and had therefore provided no evidence of her financial situation. 

   (b)The Registrar presumed Ms Harrison has the financial means to pay the security for costs fixed in this Court, based on the amounts she had deposited with the High Court at Auckland and the Official Assignee:  Ms Harrison has deposited $22,500 for security for costs in the High Court and $10,000 with the Official Assignee.

   (c)The merits of the appeal are weak.

   (d)The financial benefits of pursuing the appeal are not outweighed by the costs.

   (e)The circumstances of the appeal are not exceptional, and no matter is raised of public importance or significance.

   (f)This Court cannot direct funds held by other entities to be used to offset security for costs required in this Court (Ms Harrison had said the money held by the Official Assignee should be used to pay the security for costs).

2. The respondents had also sought to increase security for costs to $10,000.  The Registrar declined that application on the basis there are no exceptional features in this case that would justify an increase.[2]

Principles to be applied

[2]Houghton v Saunders [2015] NZCA 141.

1. The position that security is required for every appeal must be balanced against the need to ensure access to justice.  But the Registrar should only dispense with security for costs if it is right to require the respondent to defend the judgment under challenge without the usual protection as to costs that security provides.[3]  If the appeal is not one a sensible and solvent litigant would pursue, then there is no basis for dispensing with security for costs.

   [3]Reekie v Attorney-General [2014] NZSC 63 at [21] and [31].

2. Rule 36 of the Court of Appeal (Civil) Rules provides a special position for appellants who have applied for or been granted legal aid at the time the appeal is brought.  Until the application for legal aid has been determined and unless it is declined, there is no requirement to pay security for costs.

Ms Harrison’s application

1. Ms Harrison applied to have security dispensed with on the basis she had been forced into litigation by the respondents in order to protect her rights as a beneficiary and to protect herself against bankruptcy.  Alternatively, she said she had already paid $32,500 to the High Court at Auckland and the Official Assignee in Christchurch, and the security for costs should be taken from the money deposited with the Official Assignee.

2. The Registrar was correct to decline Ms Harrison’s (alternative) application that the $10,000 held by the Official Assignee be used to pay security for costs. 

3. I consider the Registrar was also correct to decline Ms Harrison’s application to dispense with security for costs altogether.  As at 21 April (the date the respondents filed a memorandum opposing Ms Harrison’s application) Ms Harrison owed $13,480.06 plus interest.  This amount comprises the judgment debt and court costs arising from non-payment.  The merits of the appeal are weak.  Ms Harrison seeks to raise again many of the arguments she made in the original proceeding against the judgment creditors.  As Associate Judge Osborne pointed out, these matters have been determined and are not the subject of any appeal.[4]  On that basis, a reasonable and solvent litigant would not proceed with this appeal. 

   [4]Harrison v Harrison, above n 1, at [35].

4. Further, there is no public interest in the appeal justifying requiring the respondents to defend the judgment of Associate Judge Osborne without the protection of security for costs.

5. However, Ms Harrison has since indicated she has applied for or qualifies for legal aid.[5]  She says she has (so far unsuccessfully) contacted a number of lawyers from a list provided to her by Legal Aid Services in an attempt to find someone who can facilitate her legal aid application and represent her on appeal.  She has provided copies of some of the relevant correspondence with two barristers. 

   [5]In CA325/2015, Ms Harrison’s appeal against Harrison v Harrison [2015] NZHC 1054 (a further judgment of Associate Judge Osborne declining Ms Harrison’s application for suspension of her bankruptcy and preventing the advertisement of her bankruptcy pending the outcome of the present appeal CA144/2105), Ms Harrison asserts she has applied for legal aid. In email correspondence with Court officers dated 14 August 2015, she says “I qualify for legal aid”. She has not provided evidence of a relevant application nor of any decision by Legal Aid Services. A Grants Officer has confirmed as at the date of this judgment no application by Ms Harrison has been received.

6. This was not before the Registrar at the time the decision declining Ms Harrison’s application was made.  In any case, it does not alter Ms Harrison’s position in respect of security for costs.  Despite her assertion that she “qualifies for legal aid”, Ms Harrison has not applied for legal aid and does not purport to rely on impecuniosity in her application to dispense with security for costs.  Indeed, in earlier proceedings she has strongly rejected any suggestion of insolvency.[6] 

Result

[6]See Harrison v Harrison, above n 1, at [14].

1. Given all of that, I conclude the Registrar’s decision was correct.  The application to review the Registrar’s decision refusing to dispense with security for costs is accordingly dismissed. 

2. Ms Harrison is to pay the sum of $5,880 by way of security for costs by Thursday 24 September 2015.

Solicitors:
Birdsey & Associates, Auckland for Respondents