McGuire v New Zealand Law Society
[2020] NZCA 271
•1 July 2020 at 3 pm
| IN THE COURT OF APPEAL OF NEW ZEALAND I TE KŌTI PĪRA O AOTEAROA |
| CA620/2019 [2020] NZCA 271 |
| BETWEEN | JEREMY JAMES MCGUIRE |
| AND | NEW ZEALAND LAW SOCIETY |
| Counsel: | Applicant in Person |
Judgment: | 1 July 2020 at 3 pm |
JUDGMENT OF COURTNEY J
(Review of Deputy Registrar’s decision)
The application for review is declined.
____________________________________________________________________
Introduction
Mr McGuire has applied for a review of the Deputy Registrar’s decision dated 14 April 2020 declining to deal with his application to dispense with security for costs on the basis that there was no jurisdiction to do so.
Mr McGuire applied for judicial review of a decision of the Central Standards Committee 3 (the Standards Committee) censuring him for non-payment of a barrister’s invoice. Clark J dismissed the application on 29 October 2019.[1] Mr McGuire filed a notice of appeal on 27 November 2019, one day out of time. The Deputy Registrar extended the time for filing the notice of appeal.
[1]McGuire v New Zealand Law Society [2019] NZHC 2748 [High Court judgment].
A number of consequences follow the filing of a notice of appeal. In this case two are relevant. First, time starts to run under r 43(1) of the Court of Appeal (Civil) Rules 2005; if the appellant fails to file the case on appeal and apply for the allocation of a hearing date within three months of the appeal being brought the appeal is deemed to have been abandoned.[2] Secondly, an obligation arises under r 35 to pay security for costs within 20 working days of filing the notice of appeal. But under r 37(2) an appellant who is in default of this obligation cannot apply for the allocation of a hearing date. Thus, an appellant who does not pay the required security for costs and therefore cannot apply for a fixture to be allocated will face having his or her appeal deemed to have been abandoned.
[2]That period can be extended under r 43(1B) or (2) of the Court of Appeal (Civil) Rules 2005. The period was, in fact, extended and I return to that point later.
These consequences are, however, subject to the rights that appellants have to apply to suspend the effect of r 43 and to apply for a dispensation of security for costs.[3] Mr McGuire did not pay the security for costs but instead applied under r 35(6)(c) for an order dispensing with security for costs. However, r 35(7)(a) requires such an application to be made within 20 working days of the notice of appeal being filed. The problem in this case arises because Mr McGuire’s application for dispensation was filed outside that time frame. He could have applied under r 35(10) to extend the time to make that application but he did not do so. The Deputy Registrar therefore took the view that there was no jurisdiction to consider the application to dispense with security for costs.
Procedural history
[3]Rules 43(1b) and 35(6).
Upon filing his notice of appeal on 27 November 2019, Mr McGuire was advised that security for costs was set at $7,060 with payment required by 16 January 2020. He was also advised that he would need to apply for the allocation of a hearing date and file his case on appeal by 27 February 2020.
The chronology from that point is as follows:
(a)On 15 January 2020, Mr McGuire sought to have the time for payment of security for costs and applying for the hearing date deferred by two months.
(b)On 5 February 2020, the Deputy Registrar advised that the time for filing the case on appeal and applying for a hearing date was extended by consent. She advised Mr McGuire that, as a result, security for costs now had to be paid by 16 March 2020[4] and a hearing date sought by 28 April 2020.[5]
(c)On 16 March 2020, Mr McGuire filed a form of application for waiver of fees together with a letter. Both made it clear that he was seeking to be relieved of paying security for costs on the basis that the appeal raises issues of public importance. However, instead of an application for a waiver of fees (which falls to be dealt with under the Court of Appeal Fees Regulations 2001), Mr McGuire should have simply sought an order dispensing with security for costs, which would be determined by reference to the principles in Reekie v Attorney‑General.[6]
(d)Mr McGuire asked that his letter be treated as an application for dispensation. That should not have caused any difficulty. But, as the Deputy Registrar pointed out, he needed to make an application to extend the time for filing the application for dispensation.[7] Mr McGuire did not accept that he required an extension of time to file the application for dispensation and did not file one.
(e)On 20 March 2020, in the midst of Covid-19 uncertainty, Mr McGuire requested that the “file” be deferred for three months. The Law Society indicated that it would not agree to that request and anticipated filing a formal response. It appears that no further action was taken by the Law Society at that point. Instead, the Deputy Registrar issued her decision on 14 April 2020 that is the subject of the current review application.
[4]Rule 35(6)(d).
[5]Rule 5A(1)(c).
[6]Reekie v Attorney-General [2014] NZSC 63, [2014] 1 NZLR 737.
[7]This is because r 35(7)(a) of the Court of Appeal (Civil) Rules requires any application for an order for dispensing with security for costs be filed within 20 working days after the notice of appeal is filed.
The Deputy Registrar concluded that Mr McGuire’s application to dispense with security for costs, which should have been filed within 20 working days of the date on which the notice of appeal was accepted for filing, was out of time. An extension of time could have been granted on an informal application under r 35(10) but Mr McGuire had refused to make such an application. In these circumstances the Deputy Registrar concluded that she had no jurisdiction to consider the application to dispense with security.[8]
[8]Citing Orlov v The National Standards Committee (No 1) [2014] NZCA 182, (2014) 22 PRNZ 120, at [7].
The Deputy Registrar went on to consider, hypothetically, what her decision would have been had an extension of time been granted and concluded that, although the appeal may give rise to an issue of public interest she did not consider it to be at the level of public interest that would justify dispensing with security for costs. The position was therefore that security for costs remained payable and was, in fact, overdue.
As already noted, Mr McGuire would not be able to apply for the allocation of a hearing date until security for costs was paid.[9]
[9]Court of Appeal (Civil) Rules, r 37(2).
In an email sent with her decision of 14 April 2020, the Deputy Registrar noted that Mr McGuire was required to satisfy r 43(1) by 28 April 2020 but indicated that an extension of time could be granted under r 5A(1)(c), either by consent or for up to five working days without consent.
The Law Society agreed to an extension of time for the application for the allocation of a hearing date and for the filing of the case on appeal to 19 May 2020 and the extension was made by consent. Security for costs would need to be paid before that date.
On 19 May 2020 however, with security for costs not yet having been paid, Mr McGuire filed an application for review of the Deputy Registrar’s decision. Later the same day Mr McGuire requested that his obligations under r 43(1) be suspended for a month. The Deputy Registrar responded to that request, suspending the application of r 43 for one month.[10] She made it clear that the final date for compliance with r 43(1) was now 19 June 2020. She added that “[c]loser to that time I will consider whether a further suspension is warranted”.
[10]Rule 43(1B)(c).
No further steps have been taken by the Deputy Registrar. On 27 May 2020 the Law Society filed a memorandum opposing the application for review and any further r 43 extensions.
Review of Deputy Registrar’s decision
Mr McGuire’s submissions in support of his application for review concentrate exclusively on the perceived issues of public interest raised by the appeal. He does not address the procedural problem he faces.
I am satisfied that the Deputy Registrar’s decision was correct. Mr McGuire has wrongly focused his attention on r 43. But the issue for him arises under r 35. If he wished to apply for dispensation he had to do so within 20 working days of filing his notice of appeal. His failure to do that was not fatal; he could have made an informal application under r 35(10) to extend the time for applying for a dispensation. But his failure to make that application is fatal.
Although Mr McGuire was explicitly told that he needed to apply to extend time for the dispensation application, inexplicably, he did not accept that advice. He appears to have proceeded on the misapprehension that the application being made was one under r 43. This left the Deputy Registrar in the position of being asked to deal with an application for dispensation that was made out of time and where the applicant had not sought an extension of time to bring the application. She has no jurisdiction to do so.
Given the lack of jurisdiction, it is not strictly necessary for me to consider the merits of the application for dispensation. However, since the Deputy Registrar expressed her view on the merits of the application I briefly address that aspect also.
The principles that apply to the dispensation of security for costs on appeal are those discussed by the Supreme Court in Reekie v Attorney-General.[11] They reflect the fact that most applications for dispensation arise in the context of an appellant’s impecuniosity. But the statement that “[t]he Registrar should only 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” is of general application.[12] The Court also acknowledged that cost and benefit are not to be assessed solely in financial terms and may take into consideration of issues of public interest that are not measurable in financial terms or matters of personal importance such as reputation.[13] In Banks v Ports of Auckland Ltd, for example, security for costs was dispensed with on the grounds that the appeal raised issues of public interest (the stewardship and governance of public assets) and that the appeal appeared to have some merit.[14]
[11]Above n 6.
[12]At [21].
[13]At [41].
[14]Banks v Ports of Auckland Ltd [2015] NZCA 150.
The judicial review proceedings arose from a complaint by a barrister whom Mr McGuire had engaged that Mr McGuire had failed to pay the fees rendered in accordance with the obligations imposed by r 10.7 of the Lawyers and Conveyancers Act (Lawyers: Conduct and Client Care) Rules 2008 (the Rules of Conduct and Client Care), which provides that:
A lawyer who, acting in a professional capacity, instructs another lawyer, must pay the other lawyers’ account promptly and in full unless agreement to the contrary is reached, or the fee is promptly disputed through proper professional channels. This rule applies to the accounts of barristers sole and foreign lawyers.
In the High Court Mr McGuire argued:
(a)that the Standards Committee had erred in finding that there was no agreement that Mr McGuire’s client would be solely responsible for payment of the barrister’s fee;
(b)that the Standards Committee had made an error of both fact and law in holding that the barrister was entitled to be paid his fees despite Mr McGuire being dissatisfied with the barrister’s opinion; and
(c)that the Standards Committee’s determination was invalid as a result of bias on the part of the Committee.
Mr McGuire’s notice of appeal does not identify specific grounds of appeal. In particular, he does not identify any specific error by the Judge. In his submissions in support of the application to review the Deputy Registrar’s decision, Ms McGuire claims that he did not engage the barrister and asserts that the Judge was wrong to proceed on the basis that he had done so. Instead, he identifies the following “suggested issues” of public interest (none of which are predicated on error by the Judge):
(a)If a barrister has agreed that a client is paying his fee for an opinion and the client subsequently refuses to pay that fee, what are the responsibilities of the solicitor holding the agreed fee in a trust account if the client instructs the solicitor to not pay the barrister?
(b)What are the barrister’s responsibilities if a client disagrees with a legal opinion for which he was expressly retained; is he entitled to payment despite that disagreement?
(c)When has a barrister discharged his responsibilities to provide the client with an opinion?
(d)What does the reference to “proper professional channels” in r 10.7 of the Rules of Conduct and Client Care mean?
The difficulty with the issues Mr McGuire seeks to raise is that, given the Judge’s findings, they are entirely hypothetical. The Judge extensively considered the facts before her against well settled law on the obligations of a lawyer in Mr McGuire’s circumstances and found that his conduct had been:[15]
… an unequivocal confirmation … that he would perform according to the obligations on him under r 10.7. That is, as a lawyer acting in his professional capacity instructing Mr Twist, he would pay Mr Twist’s account promptly and in full or dispute the fee promptly through proper professional channels.
I am satisfied no explicit arrangement was reached between Mr McGuire and Mr Twist that the client would be solely responsible for the payment of the fee. The Standards Committee did not err in determining Mr McGuire’s failure to pay Mr Twist’s account was in breach of r 10.7.
[15]High Court judgment, above n 1, at [69]–[70].
In relation to the question of Mr McGuire’s dissatisfaction with the opinion rendered the Judge considered that judicial review of a Standards Committee decision was not a proper professional channel. If he had wished to challenge the decision, Mr McGuire should have raised his concerns through an appropriate disputes resolution process or through the Legal Complaints Service.[16]
[16]At [73].
Mr McGuire does not actually identify any issue based on an error by the Judge but simply “[suggests] that this appeal could be of real benefit to the legal profession”. It is possible that some of the issues Mr McGuire identifies might arise in the context of another case but they are not ones that require consideration by this Court in the context of a case where they can make no difference to the outcome. The respondent ought not be put to the expense of an appeal in which there is no real issue between the parties.
Result
The application for review is declined.
Solicitors:
New Zealand Law Society, Wellington for Respondent
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