Henry v Minister of Justice

IN THE COURT OF APPEAL OF NEW ZEALAND

I TE KŌTI PĪRA O AOTEAROA

CA329/2020
[2021] NZCA 159

BETWEEN	COLIN SAMUEL HENRY Applicant
AND	MINISTER OF JUSTICE First Respondent ATTORNEY-GENERAL Second Respondent

Counsel:	Applicant in person V McCall and J B Watson for Respondents
Judgment: (On the papers)	3 May 2021 at 10.00 am

JUDGMENT OF MILLER J
(Review of Registrar’s Decision)

A The application for review of the Registrar’s decision is declined.

B Mr Henry must pay security for costs of $7,060 by 28 May 2021.

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REASONS

Mr Henry seeks a review of the Registrar’s decision declining his application to dispense with security for costs.[1]

Background

[1]Court of Appeal (Civil) Rules 2005, rr 35(6)(c) and 5A(3).

In 2018 Mr Henry applied unsuccessfully for the position of Race Relations Commissioner. He sought judicial review of the appointment process. In a decision delivered on 28 June 2019, Gault J dismissed the application.[2]
[2]Henry v The Minister of Justice [2019] NZHC 1493.
Mr Henry seeks to appeal against the High Court’s decision. In October 2020 he applied to dispense with security for costs. The application was made primarily on the basis that the appeal raises issues of public importance.
However, the Registrar was not satisfied that the appeal was of sufficient public importance that security could be dispensed with in the absence of impecuniosity. Nor was she satisfied that a costs order would be unlikely if the appeal fails. She also considered there may be an element of vexatiousness to the proceeding. She therefore declined Mr Henry’s application.

Analysis

An application to dispense with security is likely to be based on one of two broad grounds:[3]
(a)costs are unlikely to be ordered against the appellant and, for this reason, security should not be required; or
(b)the appellant either cannot pay or will suffer severe hardship if payment is required.
[3]Reekie v Attorney-General [2014] NZSC 63, [2014] 1 NZLR 737 at [19].
Mr Henry says he will suffer severe hardship if security is required. Payment of security would constitute a significant financial burden. However, he does not claim to be impecunious and this is not a case in which it can be said that the appellant will be unable to proceed if required to pay security.
Mr Henry’s principal argument is that he ought to be excused security because he is acting in the public interest; the benefits of his appeal will accrue to the “team of five million”. We accept that the integrity of the appointment process for the Race Relations Commissioner involves an element of public importance. However, we make three points.
First, we consider there is limited public interest in the appeal itself, which focuses primarily on alleged breaches of legitimate expectations at the early stages of the recruitment process. The grounds of appeal do not appear to raise any novel questions of law.
Second, as the Registrar has noted, several of the grounds of appeal seek to impugn factual findings in the High Court that can only be of personal significance to Mr Henry. The appeal focuses on his legitimate expectations and seeks an award of damages for breach of his rights under the New Zealand Bill of Rights Act 1990.
Third, the application to dispense with security must be assessed on the assumption that Mr Henry may lose the appeal. The Court may be satisfied that there was nothing materially wrong with the processes followed or with the decision to prefer another candidate for the position of Race Relations Commissioner. In those circumstances costs would almost certainly follow the result, in accordance with long‑settled practice. The general rule to that effect applies in cases that are said to engage the public interest.[4]
[4]Prebble v Awatere Huata (No 2) [2005] NZSC 18, [2005] 2 NZLR 467.
Moreover, while the proposed appeal may be arguable, it cannot be said that it has strong prospects of success. When granting leave, this Court assessed the merits as weak.[5]
[5]Henry v The Minister of Justice [2020] NZCA 445 at [7].
In these circumstances the Registrar was correct to decline the application.

Result

The application for review of the Registrar’s decision is declined.
Mr Henry must pay security for costs of $7,060 by 28 May 2021.

Solicitors:
Crown Law Office, Wellington for Respondents

The Court of Appeal of New Zealand dealt with an application from Colin Samuel Henry for a review of the Registrar’s decision to decline his application to dispense with security for costs in the matter of Henry v Minister of Justice. Mr Henry had applied for the position of Race Relations Commissioner in 2018 and, after an unsuccessful judicial review of the appointment process, sought to appeal the High Court's dismissal of his application. The primary basis of Mr Henry's application to dispense with security for costs was the public importance of the issues his appeal raises. The Registrar declined the application, finding that the appeal was not of sufficient public importance to dispense with security for costs, and that a costs order would likely follow if the appeal failed.

The legal issues the Court had to decide were whether the appeal had sufficient public importance to warrant a dispensation from the requirement to provide security for costs and whether it was unlikely that a costs order would be made against Mr Henry if the appeal were to fail. The Court held that while the integrity of the appointment process for the Race Relations Commissioner involves an element of public importance, there was limited public interest in the appeal itself, which focused primarily on alleged breaches of legitimate expectations at the early stages of the recruitment process. Furthermore, the appeal grounds did not appear to raise any novel questions of law. The Court also considered that several of the grounds of appeal sought to impugn factual findings in the High Court that were of personal significance to Mr Henry. Additionally, the application to dispense with security had to be assessed on the assumption that Mr Henry may lose the appeal, and in such a case, costs would almost certainly follow the result, in accordance with long-settled practice.

The Court found that the Registrar was correct to decline the application to dispense with security for costs. Mr Henry was required to pay security for costs of $7,060 by 28 May 2021. The application for review of the Registrar’s decision was declined.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established