Mitchell v Attorney-General - [2015] NZCA 21

IN THE COURT OF APPEAL OF NEW ZEALAND

CA352/2014
[2015] NZCA 21

BETWEEN	KERRYN MITCHELL Appellant
AND	ATTORNEY-GENERAL First Respondent

Counsel:

Appellant in person
C A Griffin for First Respondent

Judgment:

(On the papers)

23 February 2015 at 10.30 am

JUDGMENT OF WILD J
[Review of Registrar’s decision on security for costs]

AThe Registrar’s decision declining the appellant’s application that security for the costs of this appeal be dispensed with is upheld.

BThe appellant is required to pay into this Court $5,880 security for costs by Friday 27 March 2015.

____________________________________________________________________

REASONS OF WILD J

By application filed on 7 January this year, Ms Mitchell applies pursuant to r 7(2) of the Court of Appeal (Civil) Rules 2005 for a review of a Registrar’s decision. In that decision, communicated in a letter to Ms Mitchell dated 25 August 2014, the Registrar declined Ms Mitchell’s application under r 35(6)(c) that security for the costs of this appeal be dispensed with.
Ms Mitchell’s application for review is lengthy (17 pages), but I consider the essence of it is captured in this paragraph:
9.The Applicant applies to the Court of Appeal Judge for a review of the ‘merits based assessment’ and ‘benefit/costs analysis’ made by the Registrar ‘no reasonable grounds of appeal’. A Court of Appeal Justice is a more suitable person to exercise this ‘statutory power’ due to the discretion findings of the High Court Justice and the Error of law and facts alleged by the Applicant on the subject matter of the appeal – the ‘Rental Charge’ application – specified condition and no ‘exceptions’ policy implementation by the Chief Executive Officer, Department of Corrections.
This appears to be directed particularly against these parts of the Registrar’s decision:
Security for costs will only be dispensed with where I am 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. If a reasonable and solvent litigant would not proceed with the appeal, having regard to the benefits of bringing the appeal weighed against the costs of bringing the appeal, then security for costs will not be dispensed with.
I do not believe that it is right to require the respondent in this matter to defend the judgment without the usual protection of security for costs. There is nothing in this appeal of public importance or significance. The benefits (both financial and non-financial) to be obtained by pursuing this appeal are outweighed by the costs (both financial and non-financial) of the exercise. In this circumstance a reasonable and solvent litigant would not proceed with this appeal.
Those paragraphs apply the principles outlined by the Supreme Court in Reekie v Attorney-General.[1] Reekie is the authoritative guidance for this Court’s Registrar in dealing with applications to dispense with security for the costs of an appeal. The Registrar correctly applied those principles.
[1]Reekie v Attorney-General [2014] NZSC 63, particularly at [21], [31] and [35].
Implicit in the…

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.

Continue reading Mitchell v Attorney-General

Details

AGLC: Mitchell v Attorney-General [2015] NZCA 21
Case: [2015] NZCA 21
Decision Date: 23 February 2015 at 10.30 am

CaseChat Overview and Summary

The Court of Appeal of New Zealand heard an appeal by Kerryn Mitchell against the Attorney-General, specifically challenging a Registrar's decision that declined her application to dispense with security for the costs of the appeal. This decision was made under Rule 35(6)(c) of the Court of Appeal (Civil) Rules 2005. Mitchell's appeal questioned the Registrar's assessment that there were no reasonable grounds for her to pursue the appeal, which pertained to a 'Rental Charge' application and a specified condition policy implemented by the Chief Executive Officer of the Department of Corrections. Mitchell argued that a Court of Appeal Judge was more suited to review the decision due to the alleged errors of law and fact.

The central legal issue before the Court of Appeal was whether the Registrar's decision to deny Mitchell's application for the dispensation of security for costs was correct. The Court examined whether the appeal had merit and whether a reasonable and solvent litigant would proceed with the appeal considering the benefits and costs involved. The Registrar's decision was based on the principles established in the Supreme Court case of Reekie v Attorney-General, which provided the authoritative guidance for such matters. The Registrar concluded that the appeal lacked merit and that the costs outweighed the benefits, thus a reasonable litigant would not proceed.

Wild J, who reviewed the Registrar’s decision, agreed with the Registrar's findings. He noted that the appeal did not have a real prospect of success and thus upheld the Registrar's decision. Wild J observed that Mitchell had not provided verified evidence of her financial circumstances or details about her application for legal aid. However, the Registrar had accepted Mitchell's claim of impecuniosity, and this acceptance was upheld by Wild J. Wild J also dismissed Mitchell's attempt to introduce new evidence, stating that it was not necessary to address this issue since the Registrar had already given Mitchell the benefit of the doubt regarding her financial status. Consequently, the Court confirmed the requirement for Mitchell to pay the security for costs and extended the deadline to 27 March 2015.

Orders