Moir v IHC New Zealand Inc
[2018] NZCA 130
•30 April 2018 at 2.30 pm
| IN THE COURT OF APPEAL OF NEW ZEALAND I TE KŌTI PĪRA O AOTEAROA |
| CA570/2017 [2018] NZCA 130 |
| BETWEEN | JULIE MOIR |
| AND | IHC NEW ZEALAND INCORPORATED |
| AND | PAUL WILSON |
| Hearing: | 11 April 2018 |
Court: | Gilbert, Dobson and Toogood JJ |
Counsel: | A C Beck for Applicant |
Judgment: | 30 April 2018 at 2.30 pm |
JUDGMENT OF THE COURT
The application for leave to appeal is dismissed
____________________________________________________________________
REASONS OF THE COURT
(Given by Toogood J)
Introduction
Julie Moir applies under s 56(5) of the Senior Courts Act 2016 for leave to appeal a decision of Mallon J in the High Court at Wellington given by a Minute dated 20 June 2017 (“the June decision”)[1].
[1]Moir v IHC NZ Inc HC Wellington CIV-2017-485-463, 20 June 2017.
Although IHC New Zealand Inc and a Mr Wilson are cited as respondents in the appeal, that is only because it arises from a procedural decision made by the Registrar of the High Court at Wellington in connection with a proceeding in which they are the respondents. They are not affected by the matters at issue and have taken no part in the appeal. For that reason, Ms Hansen was appointed as counsel to assist the Court by presenting independent submissions on the matters of law which we have been asked to address. We are grateful for her assistance.
The history of procedural decisions made by Mallon J in the High Court is relevant to an understanding of the issue on appeal:
(a)On 26 May 2017, the Judge issued a judgment (“the May judgment”) holding that the Registrar was entitled to decide not to waive payment of the filing fee in a judicial review proceeding brought by Ms Moir in which IHC New Zealand Inc and another are the respondents.[2]
(b)In the June decision, Mallon J refused an application under r 7.49(1) of the High Court Rules 2016 to rescind the May judgment.
(c)In a judgment delivered on 8 September 2017 (“the September leave judgment”), the Judge refused an application by Ms Moir under s 56(3) of the Senior Courts Act for leave to appeal the June decision.[3]
Background
[2]Moir v IHC NZ Inc HC Wellington CIV-2017-485-463, 26 May 2017.
[3]Moir v IHC NZ Inc [2017] NZHC 2189.
To explain the background of the application before the Court, we draw on Mallon J’s useful summary in the September leave judgment:[4]
(a)On 27 April 2017, Ms Moir filed a notice of proceeding and statement of claim. The notice of proceeding, signed by Ms Moir’s counsel, stated in the accompanying memorandum that the plaintiff has been granted legal aid.
(b)At the same time, Ms Moir applied, on a Ministry of Justice form, for a waiver of the $540 filing fee. The basis for this application was she had been granted legal aid. The form asked Ms Moir to attach a copy of the letter from the Legal Services Agency granting legal aid. A copy of the letter was not attached to Ms Moir’s application.
(c)On 2 May 2017, Ms Moir’s counsel corresponded by email with the Registrar over the requirement to provide the letter. He relied on s 24 of the Legal Services Act 2011 which requires the provider under a grant of legal aid to notify every other party to the proceeding and the Registrar of the grant. Counsel said this notice was given in the notice of proceeding. He confirmed in his email that legal aid had been granted. Counsel also asserted there was no requirement to provide the letter from the Legal Services Agency and noted this was a privileged document. He argued that the Ministry’s fee waiver form could not require what the legislation does not and asked for the matter to be referred to the registry officer’s manager. This was done and on 15 May 2017 the Registrar (and Court Manager) repeated the requirement for a copy of the letter to be provided in accordance with the form.
(d)On 16 May 2017, Ms Moir sought review of the Registrar’s decision by a Judge. This application was dismissed in the May judgment.
(e)On 1 June 2017, Ms Moir applied for an order rescinding the May judgment. That application was dismissed in the June decision.
(f)On 17 July 2017, Ms Moir applied for leave to appeal to this Court against the June decision. That application was dismissed in the September leave judgment.
Grants of leave by this Court to hear interlocutory appeals from the High Court
[4]Moir v IHC NZ Inc [2017] NZHC 2189 at [2].
This Court’s jurisdiction to hear an appeal from any order or decision of the High Court made on an interlocutory application in respect of any civil proceeding may be exercised only if leave to appeal is given by the High Court[5] or by the leave of this Court granted under s 56(5) where the High Court has refused leave.
[5]Senior Courts Act 2016, s 56(3).
Neither the Senior Courts Act nor the Court of Appeal (Civil) Rules 2005 prescribe any criteria for the grant of leave to appeal against an interlocutory decision of the High Court, and we are unaware of any case in which this Court has considered the criteria for leave under s 56(5). Counsel did not cite any. The leave that is sought in this case is essentially leave to bring a second appeal against the Registrar’s decision. By analogy with decisions under s 67 of the Judicature Act 1908, the forerunner to s 56, we consider leave should not be granted unless the proposed appeal raises some question of law or fact capable of bona fide and serious argument in a case involving some interest, public or private, of sufficient importance to outweigh the cost and delay of the appeal. Moreover, leave should not be granted unless the proposed appeal has some reasonable prospect of success.[6] That requires consideration of the merits of the proposed appeal.
The grounds for leave in this case
[6]Snee v Snee (1999) 13 PRNZ 609 (CA) at [15], Waller v Hider [1998] 1 NZLR 412 (CA) at 413.
Rule 17 of the Court of Appeal (Civil) Rules provides that an application to this Court for leave to appeal must state the specific grounds of the appeal and why the Court should grant leave. The grounds on which leave is sought in this case reflect the usual considerations in leave applications:
(a)The decision of the High Court raises an important question of principle; namely, whether the Registrar can disregard advice given by a legal aid provider that legal aid has been granted.
(b)The issue goes beyond the circumstances of the present case, and raises questions of the operation of the legal aid scheme and the integrity of counsel.
(c)It is seriously arguable that the decision of the High Court failed to address the questions before it and the conclusion it came to is clearly wrong.
(d)The High Court did not provide adequate reasons to justify its decision and, in particular, the Court failed to address "the fundamental question in issue, namely whether the Registrar could properly conclude that legal aid had not been granted".
Mr Beck also argues in support of leave that the issues raised in the case "are of significant concern to the legal profession". He does not provide any support for that proposition, however, other than to say that leave may be justified where a decision reflects on reputation[7] and that the view adopted by the High Court:
(a)means that the Registrar “can effectively disregard the advice of a legal aid provider to the effect that legal aid has been granted”; and
(b)undermines the fundamental relationship between legal practitioners and the Court.
[7]NZ Sports Drug Agency v Bray (2000) 14 PRNZ 702.
Strictly speaking, the application now before this Court is confined to the narrow issue of whether leave to appeal the June decision (not to rescind the May judgment) should be granted. The purpose of the leave application, however, is to enable Ms Moir to invite this Court to find that Mallon J erred in her substantive ruling in the May judgment that the Registrar was entitled to decide not to waive payment of the filing fee because Ms Moir had failed to comply with the requirements of the approved form. Since the substantive issue was addressed by counsel in their written submissions and oral argument, we are in a position to consider whether there is sufficient merit in the proposed challenge to Mallon J’s decision on the fee waiver to justify a grant of leave. In doing so, we have regard to the reasons given by the Judge in both the May judgment and the September leave judgment.
The proposed challenge to the Registrar’s refusal to waive the filing fee
Put simply, the argument Mr Beck would advance if leave to appeal was granted is this:
(a)Regulation 18(1) of the High Court Fees Regulations 2013 (“the Fees Regulations”) provides that a person may apply to the Registrar of a court for a waiver of a fee payable in connection with a proceeding or intended proceeding in the court.
(b)Regulation 18(2) provides that the Registrar may waive a fee “if satisfied … on the basis of one of the criteria specified in regulation 19, that the person is unable to pay the fee".
(c)One of the criteria in reg 19 is that, "the person has been granted legal aid in respect of the matter for which the fee is payable".
(d)Where a lawyer has complied with the obligation under s 24 of the Legal Services Act 2011 to notify every other party to the proceeding and the Registrar that legal aid has been granted, by notice set out in the notice of proceeding filed with a statement of claim, such notice operates for all purposes.
(e)It follows that, notwithstanding the provisions of reg 18(3) of the Fees Regulations, the Registrar is required to accept the lawyer's notice of the legal aid grant under s 24 of the Legal Services Act as proof that the party for whom the lawyer acts is a person unable to pay the filing fee for the purposes of a waiver application under the Fees Regulations.
Contrary to Mr Beck’s submission, we do not agree that the fundamental question in issue is whether the Registrar could properly conclude that legal aid had not been granted. The essential issue is whether the Registrar was entitled to insist on compliance with the requirements of the approved form.
Discussion
Mr Beck did not argue that regs 18 or 19 of the Fees Regulations, or the form approved by the chief executive for the purposes of reg 19, were invalid.
The form approved by the chief executive which was used by Ms Moir in making her application for waiver required her to indicate, by marking the appropriate box, that she had been granted legal aid to file her application for judicial review. She did that. The form required her also to attach a copy of the letter from the Legal Services Agency granting her legal aid. She did not do that. Mr Beck's argument is that, notwithstanding the requirements of the approved form, the Registrar was not permitted to require Ms Moir to provide a copy of the letter from the Agency because proof of the grant of legal aid had already been given to the Registrar and the other parties by her counsel in the notice under s 24 of the Legal Services Act.
The short answer to Mr Beck's submission is that it is based on the false premise that notice under s 24 of the Legal Services Act is binding on the Registrar for the purposes of a waiver under the Fees Regulations. As Mr Beck himself acknowledged in his submissions, the legal aid provider's obligation to provide notice under s 24 of the Legal Services Act is separate from the obligation of the party personally to provide proof of a grant of legal aid for the purposes of the fee waiver. The principal purpose of the statutory requirement under s 24 is to notify the other party or parties to the proceeding of the grant of legal aid because of the costs implications, both as to any provision of security for costs or for the purposes of the making of any costs order on the disposition of the proceeding. Bare notice of the grant from a third party is sufficient for that purpose. When s 24 notice is provided to the Registrar, no decision is made nor any other step taken as a consequence; the notice merely informs the Court of the position.
Acceptance of Mr Beck’s submission would mean that, in any case where a lawyer has certified under s 24 of the Legal Services Act that legal aid has been granted, the Registrar may not enforce the requirement in the fee waiver form that the applicant shall attach a copy of the letter from the Legal Services Agency confirming the grant. If that was right, the regulation might have been expected to say so.
More fundamentally, a finding that the Registrar is not entitled to require provision of the letter in accordance with the approved form would be contrary to the plain wording of reg 18(3) of the Fees Regulations. It requires that an application for waiver of a filing fee:
… must be made in a form approved for the purpose by the chief executive of the Ministry of Justice unless, in a particular case, the Registrar considers that an application in that form is not necessary.
It is the regulation, by means of the approved form, that requires the applicant to provide a copy of the letter approving legal aid unless the Registrar decides to waive compliance. The Registrar may waive that or any other requirement contained within the form if it is unnecessary to insist on compliance. That may be because the Registrar is satisfied on other grounds that legal aid has been granted. For example, where the s 24 notice to the Court and the other parties attached a copy of the letter of grant or other evidence satisfying the Registrar that the grant had been made.
As Mr Beck argued, it is not a purpose of the form approved under the Fees Regulations to provide for the notice required to be given to the Court and other parties under s 24 of the Legal Services Act. The requirement to attach a copy of the letter of grant to the waiver application is to enable the Registrar, without further inquiry, to determine that the applicant qualifies for a fee waiver as a person who “is unable to pay the fee sought to be waived”.[8] The letter is sent to the aided person. It is he or she (not their lawyer) who is required to complete the waiver application form and attaching a copy of the letter of grant is not an onerous requirement. It is the best evidence that the applicant cannot pay the filing fee.
[8]High Court Fees Regulations 2013, reg 19(a).
We accept Mr Beck’s submission that members of the legal profession are officers of the Court and that they are usually taken at their word. But it does not follow that requiring an applicant for a fee waiver to provide a letter proving a grant of legal aid undermines the fundamental relationship of trust between legal practitioners and the Court. The Registrar’s decision to insist on compliance with the approved form does not denigrate the profession; it amounts merely to the Registrar properly requiring adherence to a routine statutory requirement that is personal to the applicant and cannot be discharged by his or her lawyer.
Because the grant of legal aid may be subject to conditions, the Registrar is entitled to insist on receiving a copy of the letter to ensure that the grant properly relates to the proceeding in respect of which the filing fee would otherwise be payable. Further, the letter itself provides adequate proof, for audit purposes, that the Registrar was justified in waiving payment of a fee when the Registrar would otherwise be under a duty to it collect on behalf of the Ministry.
Mr Beck explained that letters from the Legal Services Agency advising litigants of a grant of legal aid may contain references to the proceeding and the merits of the litigant’s case. Conditions attached to the grant may be personal and private. Mr Beck argued that an applicant for a waiver should not be required to disclose such information. In such a case, however, there is no reason why irrelevant or confidential material which the applicant does not wish the Court or other parties to see cannot be redacted from the copy provided.
We are satisfied that Mallon J correctly upheld the right of the Registrar to insist on compliance with the requirements of the approved form. It follows that the proposed appeal for which leave is sought would not succeed.
Result
The application for leave to appeal is dismissed.
Solicitors:
Peter Sara Lawyer, Dunedin for Applicant
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