Hunter v Auckland Council - [2021] NZCA 195

IN THE COURT OF APPEAL OF NEW ZEALAND

I TE KŌTI PĪRA O AOTEAROA

CA451/2020
[2021] NZCA 195

BETWEEN	KEITH MERVYN GEORGE HUNTER Appellant
AND	AUCKLAND COUNCIL First Respondent PHILIP MARTIN BURLEY Second Respondent ACL TRUSTEES LIMITED Third Respondent

Counsel:	Appellant in person A J Cumming for First Respondent S Stienstra for Second and Third Respondents
Judgment: (On the papers)	17 May 2021 at 3.00 pm

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

The application to review the Deputy Registrar’s decision declining to dispense with security for costs is declined. Security for costs of $14,120 is payable by 15 June 2021.

____________________________________________________________________

REASONS

Introduction

Mr Hunter appeals against a judgment of the High Court dismissing his application for judicial review of a decision of the first respondent, Auckland Council (the Council), granting resource consent to his neighbour, the second respondent (Mr Burley), in respect of plans to lift, shift and extend Mr Burley’s house.[1]
[1]Hunter v Auckland Council [2020] NZHC 1720.
Security for costs was set at $14,120. Mr Hunter’s application for dispensation from the requirement to pay security on both financial and public interest grounds was dismissed in a decision of the Deputy Registrar dated 17 February 2021. Mr Hunter now applies for a review of that decision. It is referred to in this judgment as the “security review” in order to distinguish it from references to the judicial review proceeding.

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 Attorney-General [2014] NZSC 63, [2014] 1 NZLR 737.
[3]At [31].
The Court also ruled that the review function of the judge in relation to security for costs is to be exercised de novo.

Deputy Registrar’s decision

Mr Hunter’s application for dispensation…

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.

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Details

Case: [2021] NZCA 195
Decision Date: 17 May 2021 at 3.00 pm

CaseChat Overview and Summary

Keith Mervyn George Hunter appeals against a decision of the High Court dismissing his application for judicial review of a decision of the Auckland Council granting resource consent to his neighbour, Philip Martin Burley, in respect of plans to lift, shift and extend Mr Burley’s house. The appeal concerns the Council’s decision to decline an application by Mr Hunter to be dispensed from the requirement to pay security for costs of $14,120. This amount was set by the Deputy Registrar of the High Court. The appeal against the Deputy Registrar’s decision is heard de novo, afresh and without reference to the earlier decision. The appeal is heard by Brown J of the Court of Appeal.

The legal issues the court was required to decide were whether the Deputy Registrar’s decision declining Mr Hunter’s application for dispensation from the requirement to pay security for costs was correct, and whether the appeal raised issues of public importance. The court considered the relevant principles applicable to dispensation from security for costs, which were reviewed by the Supreme Court in Reekie v Attorney General. The court noted that the discretion to dispense with security should be exercised so as to 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 to 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.

The court considered the material which was before the Deputy Registrar together with the new material comprising the security review and the accompanying documents. It concluded that Mr Hunter is not impecunious and that his amended appeal does not raise an issue of public importance as opposed to one of private interest. Furthermore, the court considered that a reasonable and solvent litigant would not proceed with an appeal of the tenor described in Mr Hunter’s amended notice of appeal. The circumstances of this case were not such as to require the respondents to resist the appeal without the protection of security for costs.

The court declined the application to review the Deputy Registrar’s decision declining to dispense with security for costs and ordered that security for costs of $14,120 be payable by 15 June 2021.

Orders