Mitchell v Attorney-General
[2015] NZCA 21
•23 February 2015 at 10.30 am
| IN THE COURT OF APPEAL OF NEW ZEALAND |
| CA352/2014 [2015] NZCA 21 |
| BETWEEN | KERRYN MITCHELL |
| AND | ATTORNEY-GENERAL |
| Counsel: | Appellant in person |
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.
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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 question whether a solvent appellant would reasonably wish to pursue this appeal is an assessment of the merits of the appeal.[2] Beyond answering that question in the negative, the Registrar said nothing about the merits of this appeal.
[2]At [35].
I have read the judgment of Kós J under appeal[3] and the notice of appeal Ms Mitchell filed on 27 June 2014. I consider this appeal lacks merit. In my view it has no real prospect of success. Accordingly, insofar as the Registrar assessed that this appeal lacked merit, I agree with her assessment.
[3]Mitchell v Attorney-General & Chief Executive, Department of Corrections [2014] NZHC 1339.
In opposing Ms Mitchell’s application to dispense with security, counsel for the respondents submitted:
(a)Ms Mitchell pleads impecuniosity but does not provide any verified evidence of her financial circumstances, including of her assets as opposed to her prison income; and
(b)Ms Mitchell states she is not legally aided, but does not state whether she has applied for legal aid and whether or why that was refused.
Despite those submissions, the Registrar indicated a willingness “to deal with this matter on the basis that I accept you [Ms Mitchell] are impecunious”. The Registrar then noted Ms Mitchell was not legally aided and observed “an appellant who is not prepared to submit a proposed appeal for legal aid assessment, based on the merits of the appeal, is not well placed to obtain dispensation”.
Ms Mitchell responded to that in her application for review. She advised she had applied for legal aid in respect of another appeal she was bringing in this Court. She said her application had been returned because it had not been completed in the correct manner. In the current application, Ms Mitchell stated:
The problem the Applicant has is that she has to instruct/retain Counsel and then the lawyer submits the application on my behalf. I am not able to instruct counsel so hence no application.
This seems to describe a “catch 22” situation which I am unable to unravel. It is not necessary that I do so, because the Registrar had given Ms Mitchell the benefit of the doubt in terms of her claimed impecuniosity.
I need to mention two other points for completeness. In her application for review Ms Mitchell indicated she wishes:
… to present evidence on the appeal on question of law as to ‘specified conditions’ involving a ‘rental charge’ Schedule 2.4.2 and not a ‘General Condition’ – contents 1 – Authorised Property Rules, sanctioned by legislation, section 45A(1)(b) Corrections Act 2004 2nd section 45A(3) Deemed Regulations – Tertiary Legislation.
I point out that r 45 of this Court’s Civil Rules governs an application for leave to adduce further evidence on an appeal. As best I understand Ms Mitchell’s foreshadowed application, it would not come within r 45 because it was readily available at the hearing in the High Court.
The last point concerns Ms Mitchell’s citation of a number of cases dealing with dispensation from security for costs. As I have already mentioned, the Supreme Court’s decision in Reekie is now the authoritative guidance for the Registrar when dealing with an application for dispensation. Reekie overtakes the decisions referred to by Ms Mitchell.[4]
[4]Ms Mitchell also cited Blanshard v National Mutual Life Association of Australasia Ltd [2003] BCL 1008 (HC); Easton v Broadcasting Commission & Anor [2009] NZCA 252, (2009) 19 PRNZ 675; and McLachlan v MEL Network Ltd (2002) 16 PRNZ 747 (CA).
Having reviewed the Registrar’s decision, I uphold it. The Registrar gave Ms Mitchell until 22 September 2014 to pay the required $5,880 security for costs. I extend time to pay that sum into Court to Friday, 27 March 2015.
I note that the extension of time I granted on 20 October 2014 for compliance with r 43(1) expired on 9 January this year. Given this judgment, Ms Mitchell will need to decide whether she applies, pursuant to r 43(2), for a further extension of time to comply with r 43(1). There is no point in her doing so if she cannot give the security for costs I have confirmed in this judgment. Ms Mitchell is not able to apply for a hearing date for this appeal until she gives security for costs, as confirmed by this judgment: r 37(2).
Solicitors:
Crown Law Office, Wellington for Respondent
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