Harrison v Harrison - [2022] NZCA 246

IN THE COURT OF APPEAL OF NEW ZEALAND

I TE KŌTI PĪRA O AOTEAROA

CA725/2020
[2022] NZCA 246

BETWEEN	PAULINE JANICE HARRISON Appellant
AND	ADRIENNE HARRISON AND GRAEME ROSS HARRISON First Respondents NICHOLAS HAMILTON BIRDSEY Second Respondent RAYMOND OWEN PARMENTER Third Respondent CHILDFUND NEW ZEALAND LIMITED Fourth Respondent ASB BANK LIMITED Fifth Respondent

Counsel:	Appellant in Person
Judgment: (On the papers)	13 June 2022 at 11.00 am

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

A The application for review of the Deputy Registrar’s decision is declined.
BMs Harrison is to pay security for costs in the sum of $14,120.00 by 12 July 2022. Should she fail to do so her appeal will be struck out under r 37(1) of the Rules.

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REASONS

Introduction

Ms Harrison appeals from a judgment of the High Court in which Powell J made inter alia the following orders:[1]
(a)striking out proceeding CIV-2019-404-2078 issued by Ms Harrison against the first respondents;
(b)striking out Ms Harrison’s claims against ASB Bank Ltd in proceeding CIV‑2019-404-2566; and
(c)an extended civil restraint order against Ms Harrison pursuant to s 166(2) of the Senior Courts Act 2016 (the SCA).
[1]Harrison v Harrison [2020] NZHC 3066.
Security for costs was fixed at $35,300 pursuant to r 35 of the Court of Appeal (Civil) Rules 2005 (the Rules) by reference to the number of respondents named in the notice of appeal. Ms Harrison applied for dispensation from the requirement to pay security for costs. Her application was dismissed but the Deputy Registrar reduced the amount of security to $14,120 because only the first respondents and the fifth respondent would be actively involved in the defence of the appeal.

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…

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.

Continue reading Harrison v Harrison

Details

AGLC: Harrison v Harrison [2022] NZCA 246
Case: [2022] NZCA 246
Decision Date: 13 June 2022 at 11.00 am

CaseChat Overview and Summary

Pauline Janice Harrison appeals from a decision of the High Court, where Powell J struck out proceedings and claims she had made against various respondents, and imposed a civil restraint order. Harrison’s appeal was dismissed by the Deputy Registrar, who reduced the amount of security for costs. Harrison sought review of the Deputy Registrar’s decision. The Court of Appeal found that the Deputy Registrar’s decision was correct and dismissed the appeal for review. The Court considered that the Deputy Registrar’s decision to require security for costs was in line with relevant principles, and Harrison had not provided adequate financial information to support her claim of impecuniosity. The Court also found that the appeal involved an element of vexatiousness.

The Court of Appeal reviewed the application for review of the Deputy Registrar’s decision, considering the principles applicable to dispensation from security for costs. The Court noted that the Supreme Court had previously rejected Harrison’s ultra vires argument and that the security for costs rules were consistent with the inexpensive dispatch of court business. The Court found that the Deputy Registrar’s decision was sound and that the appeal did not involve any issue of public interest or merit sufficient to warrant dispensing with the requirement for security for costs. The Court also noted that the appeal involved an element of vexatiousness, as Harrison had previously made similar arguments that had been rejected by both the Court of Appeal and the Supreme Court.

The Court of Appeal dismissed the application for review and ordered Harrison to pay security for costs in the sum of $14,120.00 by 12 July 2022. If Harrison fails to do so, her appeal will be struck out under r 37(1) of the Rules. The Court found that the Deputy Registrar’s decision was entirely sound and that there was no justification for permitting Harrison’s appeal to proceed without the provision of adequate security for costs for the two respondents affected.

Orders