McClintock v Attorney-General

[2016] NZCA 310

IN THE COURT OF APPEAL OF NEW ZEALAND

CA175/2016
[2016] NZCA 310

BETWEEN	JEFF MCCLINTOCK Appellant
AND	THE ATTORNEY-GENERAL First Respondent
RED BEACH BOARD OF TRUSTEES Second Respondent

Counsel:

R K Francois for Appellant
P T Rishworth QC and M J R Conway for First Respondent
P A Robertson for Second Respondent

Judgment:

(On the papers)

6 July 2016 at 11.00 am

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

AThe application for a review of the Registrar’s decision refusing to waive the setting down fee is declined.

BThe appellant is ordered to pay the setting down fee of $2,700 immediately.

____________________________________________________________________

REASONS

1. Mr McClintock seeks a review of a Registrar’s decision declining to waive the setting down fee for an appeal.

2. The grounds of the Registrar’s decision were that Mr McClintock was in a position to pay the fee and that the appeal was not one of public interest.

3. On review, counsel for Mr McClintock submits the Registrar erred in two key respects: first, failing to take into account the future costs of this litigation and its effect on Mr McClintock’s limited funds and, secondly, failing to appreciate the public interest in the case.

4. The appeal itself was an appeal against the decision of a High Court Judge striking out Mr McClintock’s statement of claim in the High Court.[1]  The appeal was given an urgent hearing and determined in Mr McClintock’s favour.[2]  Significantly for present purposes, however, this Court declined to award Mr McClintock any costs because of what was described as his “disentitling conduct in the High Court”.[3]  This related to “continual delays and unexplained breaches of orders”, which is what had prompted the High Court Judge to strike out the statement of claim in the first place.[4]

   [1]McClintock v Attorney-General HC Auckland CIV-2015-404-279, 19 April 2016.

   [2]McClintock v Attorney-General [2016] NZCA 274.

   [3]At [19].

   [4]At [12].

5. In those circumstances, I agree with the Registrar’s view that a distinction can properly be made between the substantive High Court proceeding, which may involve public interest, and the appeal, which plainly did not.  Further, in my view, the Registrar was not required to take into account future and as yet unascertained liabilities.

6. It follows that I consider the Registrar’s decision was correct.  The application for review is declined.  The setting down fee of $2,700 must be paid immediately.

Solicitors:
Warren Simpson, Papakura for Appellant
Crown Law Office, Wellington for First Respondent
Heaney & Partners, Auckland for Second Respondent