In the Matter Of A review of the Registrar's decision (D'Arcy-Smith)

[2023] NZHC 3235

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

I TE KŌTI MATUA O AOTEAROA TE WHANGANUI-A-TARA ROHE

CIV-2023-485-712

[2023] NZHC 3235

IN THE MATTER OF

A review of the Registrar’s decision

(D’ARCY-SMITH)

Hearing:	On the papers
Judgment:	15 November 2023

JUDGMENT OF LA HOOD J

Introduction

[1]                  Mr   D’Arcy-Smith   seeks   a   review   of   the   Registrar’s   decision   of   19 October 2023, denying him a fee waiver in respect of an appeal against a decision of the Human Rights Review Tribunal dated 1 September 2023.

[2]                  In its decision, the Tribunal found that the Ministry of Social Development had breached Information Privacy Principle 8 when it used Mr D’Arcy-Smith’s personal debt information to generate debt recovery letters in March and April 2021 without ensuring the information had been updated and accurately entered into the Ministry’s systems.1 However, the Tribunal found the breach did not result in significant emotional harm to Mr D’Arcy-Smith and therefore did not amount to an interference with his privacy.2

1      D’Arcy-Smith v Ministry of Social Development [2023] NZHRRT 26 at [24].

2 At [36].

A review of the Registrar’s decision (D’ARCY SMITH) [2023] NZHC 3235 [15 November 2023]

Statutory framework

[3]                  The power to waive fees is set out at regs 18 and 19 of the High Court Fees Regulations 2013 (Regulations). The relevant parts provide:

18Power to waive fees

…

(2)The Registrar may waive the fee payable by the person if satisfied, –

(a)on the basis of one of the criteria specified in regulation 19, that the person is unable to pay the fee; or

(b)that the proceeding, –

(i)on the basis of one of the criteria specified in regulation 20, concerns a matter of genuine public interest; and

(ii)is unlikely to be commenced or continued unless the fee is waived.

…

19Criteria for determining when person unable to pay fee sought to be waived

…

(b)      the person –

…

(i)would otherwise suffer undue financial hardship if he or she paid the fee.

[4]                  Regulation 20 provides the criteria for determining when a proceeding concerns a matter of genuine public interest as follows:

20Criteria for determining when proceeding concerns matter of genuine public interest

For the purposes of these regulations, a proceeding that concerns a matter of genuine public interest is—

(a)a proceeding that has been or is intended to be commenced to determine a question of law that is of significant interest to the public or to a substantial section of the public…

…

This case

[5]                  Mr D’Arcy-Smith’s application for waiver relied on both undue hardship under reg 18(2)(a) and the genuine public interest criteria under regs 18(2)(b) and 20(a). The Registrar declined the application on the grounds that it did not meet the criteria in reg 20(a) in that the proceeding does not raise “a question of law that is of significant interest to the public or to a substantial section of the public”.

[6]                  I agree with the Registrar’s decision. While the outcome of the proceeding is undoubtedly of great significance to Mr D’Arcy-Smith personally, it does not appear to me to raise a question of law that meets the relevant criteria. The legal test for what amounts to “significant humiliation, significant loss of dignity or significant injury to the feelings of the individual” appears settled,3 and issue does not appear to be taken with it in Mr D’Arcy-Smith’s lengthy Notice of Appeal. Instead, Mr D’Arcy-Smith appears to challenge the application of those settled principles to the particular circumstances of his case.

[7]                  Accordingly, I confirm the Registrar’s decision that the reg 20(a) criteria is not met.

[8]                  However, it appears to me that the Registrar may have overlooked that the waiver application also relied upon the undue hardship ground in reg 18(2)(a). No decision in respect of that ground was made by the Registrar. I direct the Registrar to reconsider the application under that ground.

[9]                  I note that Mr D’Arcy-Smith’s application provides somewhat limited details of his financial circumstances. For example, he indicates he is employed  as  a  “Duty Mgr” and has a total weekly income of “$520–$620 on average”. He states that his outgoings “afterpay” are “$400 approximately” and provides bank balances without the accompanying bank statements. He states that he lives in his car, spends what he earns, has unforeseen expenses every week, the cost of petrol is “a killer” and that, if he had to pay the fee, the effect would be “Not eating, unable to fill up the car

3      See D’Arcy-Smith v Ministry of Social Development, above n 1, at [27]–[29] for the established tests for significant emotional harm and causal connection with the breach.

– I do not know where I could get the money from. That is a significant amount of money for me”.   Although ultimately a matter for the Registrar, I would expect     Mr D’Arcy-Smith to provide further detail of the matters stated in his application. That could include the exact nature of his job and recent payslips (or documentation from his employer confirming his average wage), completion of the “regular weekly living expenses” items listed in the application form and recent bank statements to confirm those outgoings.

Result

[10]              I confirm the Registrar’s decision insofar as it relates to regs 18(2)(b) and 20(a), but direct that the Registrar reconsider the application under reg 18(2)(a).

La Hood J

Copy to:
Mr D’Arcy-Smith