Henry v Secretary for Justice

[2013] NZHC 2244

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CIV-2013-404-002048 [2013] NZHC 2244

BETWEEN

COLIN SAMUEL HENRY

Plaintiff

AND

THE SECRETARY FOR JUSTICE

First Defendant

THE ATTORNEY-GENERAL
Second Defendant

Hearing:	On the papers
Judgment:	30 August 2013

JUDGMENT OF ELLIS J

This judgment was delivered by Justice Ellis on 30 August 2013 at 3.00 pm

pursuant to R 11.5 of the High Court Rules Registrar / Deputy Registrar Date………………………

HENRY v SECRETARY FOR JUSTICE [2013] NZHC 2244 [30 August 2013]

[1] On 17 April 2013 Mr Henry sought to file a statement of claim in which he sought judicial review of certain decisions affecting him that had been made by the Secretary for Justice pursuant to the new legal aid regime. On the same day he applied for a waiver of the filing fee of $438.40.  He also made an application under r 7(1) of the High Court Fees Regulations 2001 to postpone the payment of the fee pending the decision on the waiver application. It appears that that application was granted and he was permitted to file the proceeding without payment of the fee.

[2] As it transpired, the fee waiver application was not determined until 3 July 2013. The application was then declined on the grounds that the proceedings raised essentially the same issue as previous proceedings filed by Mr Henry in respect of which a fee waiver had also been declined by the Registrar.1 That decision was upheld on review by Brewer J.2

[3] On 26 July Mr Henry sought review of the Registrar’s 3 July decision. The application was referred to me as Duty Judge in the week commencing 12 August 2013. Shortly after that date I was advised that the proceeding had settled, but a decision on the fee waiver review was still required.

[4] I record that if I were to determine the application review on the merits, I would uphold the Registrar’s decision; the proceeding raised issues of importance to Mr Henry personally, not to the public generally. But in my view, Mr Henry’s application for review of his decision should succeed for other reasons, which I set out below.

[5] The application for waiver was necessarily made on the basis that  the proceeding was unlikely to be commenced unless a waiver  was  granted.3  In Brewer J’s decision, the learned Judge accepted that this prerequisite had been established by Mr Henry.

1       The fee waiver was declined because that the central issue to be determined by the proceeding was not a question of law that is of genuine public interest.

2       Henry v Secretary for Justice [2012] NZHC 3360.

3       This is one of the two matters that must be established under reg 6 of the High Court Fees Regulations 2001 (since replaced by the High Court Fees Regulations 2013).

[6] But in the present case, Mr Henry was permitted to postpone the payment pending the decision on waiver and so the proceeding was, in fact, commenced notwithstanding the fact that he was unlikely to be able to pay the fee in the event that the waiver application was declined. And significantly, by the time the decision on waiver was made:

(a)a statement of defence had been filed;

(b)various directions had been made by the Court; and

(c)the judicial review had been set down for hearing (on 1 September 2013, only two weeks after the application for review was referred to me).4

[7] And, as I have said, shortly after I received the application for review, the proceeding settled.

[8]   The short point is that by the time the waiver application had been declined not only Mr Henry, but the defendant, had taken quite significant steps in reliance on Mr Henry being permitted to commence the proceedings. In these circumstances, the prospect of the proceedings being stopped in their tracks (literally, “un- commenced”) because Mr Henry could not pay the initial filing fee would, in my view, be wrong in principle. I consider that the delay in making the waiver decision effectively precludes recovery of the fee here.

[9]      The application for review succeeds accordingly. The fee waiver is granted.

Rebecca Ellis J

4       The fact that the proceedings had progressed this far was one of the grounds raised by Mr Henry in his application for review.