New Zealand Cards Ltd v Ramsay - [2013] NZCA 72

IN THE COURT OF APPEAL OF NEW ZEALAND

CA424/2012
[2013] NZCA 72

BETWEEN NEW ZEALAND CARDS LIMITED
Applicant

AND COLIN RAMSAY
Respondent

Counsel: D G Beck for Applicant
S G Wilson for Respondent

Judgment: 21 March 2013 at 11.30 am

On the papers

JUDGMENT OF STEVENS J
(Review of Registrar’s decision to decline to waive setting down fee)

The application to review the decision of the Registrar declining to waive the setting down fee of $2,658.40 is dismissed.

____________________________________________________________________

REASONS

Introduction

New Zealand Cards Limited (the applicant) has applied to review the Registrar’s decision declining to waive the setting down fee of $2,658.40. The appeal concerns a question of law under s 214 of the Employment Relations Act 2000 on which leave to appeal was given by this Court on 28 June 2012 (the leave judgment).[1]
[1] New Zealand Cards Ltd v Ramsay [2012] NZCA 285 [leave judgment].
The application to the Registrar was made under reg 5 of the Court of Appeal Fees Regulations 2001 (the Regulations).[2] I have personally considered the application to review the Registrar’s decision under s 100B of the Judicature Act 1908.

Registrar’s decision

[2]A body corporate constitutes a “person” for the purposes of reg 5: Re Wiseline Corp Ltd (2002) 16 PRNZ 347 (CA).

The application to the Registrar was made on the grounds that the applicant would suffer undue hardship if the fee was paid and that the appeal involved a matter of genuine public interest.
The Registrar’s decision was given on 13 February 2013 and concluded:
After considering the application, and the supporting material supplied, I do not believe that the company would face undue financial hardship by being required to pay this fee. I am also of the view that there is not a question of law that is of significant interest to the public or to a substantial section of the public, rather the judgment relates to a particular set of facts relating only to this case. The application for waiver is declined.

Grounds of review

The applicant challenges the Registrar’s decision. In addition to the information supplied to the Registrar, received on 15 January 2013, the applicant’s solicitor forwarded further information from Mr Bob Beresford (the sole director and shareholder of the applicant company) under cover of a letter dated 13 March 2013. I have personally considered this information.
Essentially, the applicant repeats the same arguments as were presented to the Registrar and provides some further updated financial information.

Discussion

This is the second time that the applicant has applied to review a decision of the Registrar in the course of this appeal. Earlier the applicant applied to review the Registrar’s decision on an application to dispense with security for costs. That application was unsuccessful.[3]

Undue financial hardship

[3] New Zealand Cards Ltd v Ramsay [2012] NZCA 456.

In the security for costs judgment I referred to the financial information that had been made available by the applicant up to early October 2012. In particular, I referred to…

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.

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Details

Case: [2013] NZCA 72
Decision Date: 21 March 2013

CaseChat Overview and Summary

In New Zealand Cards Ltd v Ramsay, the applicant, New Zealand Cards Limited, sought to review the Registrar's decision to decline a waiver of the setting down fee of $2,658.40. The appeal involves a legal question under the Employment Relations Act 2000, on which leave to appeal was granted by the Court of Appeal of New Zealand. The Registrar's decision was made under the Court of Appeal Fees Regulations 2001, and the applicant argued that the fee would cause undue financial hardship and that the appeal involves a matter of genuine public interest. The Registrar declined the application, finding that the company would not face undue financial hardship and that the appeal did not involve a question of law of significant interest to the public.

The applicant challenged the Registrar's decision, providing updated financial information and reiterating the arguments made to the Registrar. The Court of Appeal examined the applicant's claims of undue financial hardship and found that the applicant had not provided sufficient evidence to support its claim. The Court also concluded that the appeal did not involve a question of law of significant interest to the public or to a substantial section of the public. Although the Court had granted leave to appeal on a question of law, the tests for leave to appeal and waiver of fees are not aligned. The Court found that the appeal did not meet the test of being of significant interest to the public.

The Court of Appeal dismissed the application to review the Registrar's decision, upholding the decision to decline the waiver of the setting down fee. The applicant must pay the fee to the Registrar if it wishes to apply for the allocation of a hearing date. The applicant's arguments regarding undue financial hardship and the public interest were not sufficient to warrant a waiver of the fee. The Court of Appeal's decision reaffirms the importance of meeting the specific criteria for waiving setting down fees in appeals, as outlined in the Court of Appeal Fees Regulations 2001.

Orders