Moir v IHC New Zealand Incorporated

[2018] NZCA 48

IN THE COURT OF APPEAL OF NEW ZEALAND

 CA570/2017
 [2018] NZCA 48

BETWEEN	JULIE MOIR Applicant
AND	IHC NEW ZEALAND INCORPORATED First Respondent
PAUL WILSON Second Respondent

Counsel:	A C Beck for Applicant
Judgment: (On the papers)	14 March 2018 at 11.00 am

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

The application for a review of the Registrar’s decision refusing to grant a refund of the filing fee is declined.

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REASONS

1. Ms Moir seeks a refund of the filing fee of $1,100 paid to this Court at the time she filed her application for special leave to appeal.  She seeks the refund on the ground of undue hardship and on the ground the proposed appeal involves a matter of genuine public interest.[1]  The Registrar declined to grant a refund and Ms Moir now seeks a review of that decision.

   [1]The second ground is not advanced in the formal application for a refund signed by Ms Moir.  It was raised in a covering letter from her counsel and the Registrar was prepared to address it.

2. The proposed appeal itself concerns an issue about payment of filing fees in the High Court.  When Ms Moir’s lawyer, Mr Beck, filed the substantive proceedings in the High Court on her behalf in April 2017, he sought waiver of the filing fee.  He did so on the ground Ms Moir had been granted legal aid.  The High Court Registry informed him waiver would not be granted without a letter from the Legal Services Agency confirming Ms Moir was legally aided.  Mr Beck refused to provide the letter and sought review of the Registry’s decision.  Justice Mallon considered the matter and declined the application for review.[2]  The Judge held the Registry was entitled to insist on the letter, a view she confirmed in a subsequent minute declining a further application by Mr Beck to rescind her judgment.[3]  The filing fee was then paid and Mr Beck applied for leave to appeal to this Court.[4]

   [2]Moir v IHC New Zealand Inc CIV-2017-485-463, 26 May 2017.

   [3]Moir v IHC New Zealand Inc CIV-2017-485-463, 20 June 2017.

   [4]Under s 56 of the Senior Courts Act 2016, Mallon J having declined to grant leave in Moir v IHC New Zealand Inc CIV-2017-485-463, 8 September 2017.

3. The filing fee in this Court was paid on 3 October 2017.  The application for leave and the substantive appeal have since been set down for an oral hearing on 11 April 2018.

4. An application for refund of fees is governed by regs 8 and 5 of the Court of Appeal Fees Regulations 2001.  The combined effect of those regulations in the circumstances of this case are that three prerequisites must be satisfied before a refund can be granted as follows:

   (a)No application for a waiver has been made.  That is satisfied in this case.

   (b)Ms Moir has either suffered financial hardship as a result of paying the fee or the proposed appeal is a matter of genuine public interest.

   (c)The application for leave and proposed appeal was unlikely to continue unless the fee had been waived and is unlikely to continue unless it is refunded.

5. In written submissions, Mr Beck says he is acting pro bono on the proposed appeal.  He says further that “[b]ecause of deadlines, the filing fee was advanced on [Ms Moir’s] behalf on the understanding that she would apply for a waiver.”  Mr Beck submits it was unrealistic for the Registrar to find Ms Moir would not suffer undue hardship, that her financial position is that of a person living from hand to mouth, that she has been assessed by the Legal Services Agency as in need of state assistance, that there should not be differing standards as between the High Court and the Court of Appeal and that the High Court has granted a waiver on the grounds of inability to pay.  I assume by this last submission it is meant the High Court would have granted waiver, but for the argument over the letter.

6. I do not accept these arguments.  In her application, Ms Moir says the effect of having to pay the fee is that she would not be able to pay her basic household expenses.  However, as the Registrar noted, although Ms Moir may be financially stretched, her income does cover her living expenses.  She has a small amount of debt but this amount is exceeded by her savings.  She also has modest assets.

7. Without being provided with any information as to the basis on which Ms Moir was granted legal aid for the purposes of the High Court hearing in early 2017 and the assessment done by the Legal Services Agency at that time, I do not attach the significance to the fact of her having been granted legal aid that Mr Beck would have me attach.

8. I am prepared to accept for the sake of argument that the proposed appeal may involve a matter of genuine public interest as defined in reg 5.  The Registrar also accepted this but went on to find that the third prerequisite was not satisfied because there was no evidence that at the time the application for leave was filed Ms Moir was unlikely to continue with the appeal.

9. That evidence from Ms Moir is still not available.  Mr Beck asserts it is inevitable the appeal will not proceed but that is all it is, an assertion.  The dogged determination with which the issue has been pursued and Ms Moir’s ability to pay the fee suggests otherwise.

10. I therefore agree with the Registrar’s decision and decline the application for review.

Solicitors:
P J Sara, Dunedin for Applicant