Harrison v Harrison

[2021] NZCA 301

IN THE COURT OF APPEAL OF NEW ZEALAND

I TE KŌTI PĪRA O AOTEAROA

 CA725/2020
 [2021] NZCA 301

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

Court:	Cooper and Brown JJ
Counsel:	Appellant in Person P M Webb for First Respondents M J Francis and M A Karlsen for Second Respondent Third Respondent in Person R A Rose for Fourth Respondent S C D A Gollin and H M Jaques for Fifth Respondent
Judgment: (On the papers)	7 July 2021 at 10.30 am

JUDGMENT OF THE COURT

AThe application for a declaration is declined.

B    The appellant is allowed five working days to provide the information sought by the Deputy Registrar. 

CIf no response is received within that timeframe, the Deputy Registrar should proceed to deal with the application for dispensation with security for costs on the basis of the information she currently has.

____________________________________________________________________

REASONS OF THE COURT

(Given by Cooper J)

1. Ms Pauline Harrison, the appellant, applied to dispense with security for costs in respect of this appeal. 

2. By letter dated 15 June 2021 the Deputy Registrar wrote to Ms Harrison noting that one of the grounds raised in Ms Harrison’s application was that she was unable to pay security for costs.  The Deputy Registrar sought detailed financial information to assess that ground, referring to the Supreme Court’s decision in Reekie v Attorney‑General.[1]  The Deputy Registrar’s letter stated that if the further information was not received by 28 June 2021, the application would be determined on the information currently before her.  Ms Harrison has not provided the further information. 

   [1]Reekie v Attorney-General [2014] NZSC 63, [2014] 1 NZLR 737.

3. Instead Ms Harrison has filed an “Interlocutory Application Ex-Parte” in which she seeks a “declaration of inconsistency” between rr 35–37 of the Court of Appeal (Civil) Rules 2005 (the Rules) and ss 145 and 148 of the Senior Courts Act 2016. 

4. Rule 35(2) of the Rules, which applies in this case, provides that the appellant must pay security for a respondent’s costs in the Court.  Under r 35(6), the Registrar may, amongst other things, dispense with security if satisfied that is warranted in the circumstances.  Ms Harrison has invoked the Registrar’s jurisdiction under that rule by applying for an order dispensing with security for costs.  Rule 37 provides that the Court may make an order striking out an appeal if security for costs is not paid by the time payment is due, and further, that the appellant may not apply for the allocation of a hearing date under r 38(1) if the appellant is in default of any obligation to pay security for costs. 

5. Section 145 of the Senior Courts Act sets out two purposes of the rules of practice and procedure.  They are to facilitate the just, speedy and inexpensive dispatch of the business of the senior courts, and the administration of justice.  Section 148(1) provides that “[t]he Governor-General may, by order in counsel, make rules of practice and procedure for each of the senior courts relating to the purpose stated in section 145”.

6. In Reekie the Supreme Court discussed the security for costs regime in the Court of Appeal, noting that in New Zealand the default position has always been that security for costs should be provided in relation to appeals, and that has been so since 1882.[2]  If sustained, Ms Harrison’s argument would have wide implications for what has generally been regarded as an essential element of providing for the just dispatch of the business of this Court, and the administration of justice.  It is inappropriate to attempt to engage with this issue in an interlocutory process and on an ex-parte basis.

   [2]At [6].

7. In any event, we do not consider that the application falls within the definition of “interlocutory application” in r 3(1) of the Rules.  That definition relevantly refers to applications brought under the rules “relating to any procedural matter”.  This application is not in that category.  While the provisions of the Rules are procedural in the sense that they provide a regime requiring payment of security for costs, and for procedures designed to deal with relevant issues in relation to security, Ms Harrison’s application seeks that the Rules be declared inconsistent with statute.  That is not a procedural matter, it is a substantive one. 

8. This Court’s role is defined by statute.  It is to determine appeals and it is not original.  Unless an application falls within the definition of “interlocutory application” it cannot be made to this Court in the context of an existing appeal.  An application for a declaration of the kind Ms Harrison wishes to make would need to be the subject of a proceeding properly commenced in the High Court.  This Court would then have jurisdiction to consider the issue in the context of any appeal from the High Court’s judgment.

9. For these reasons the application cannot succeed and it is declined.

10. Ms Harrison has chosen not to respond to the Registrar’s request for further information as to her financial position, preferring to file the application we have just disposed of. 

11. We direct that Ms Harrison be allowed a further period of five working days to provide the information sought by the Deputy Registrar.  If no response is received within that timeframe, the Deputy Registrar should proceed to deal with the application for dispensation with security for costs on the basis of the information she currently has. 

Solicitors:
Denham Bramwell, Manukau for First Respondents
Wotton Kearney, Auckland for Second Respondent
Bell Gully, Auckland for Fourth Respondent
MinterEllisonRuddWatts, Auckland for Fifth Respondent