Newlands v Nelson City Council - [2020] NZCA 262

IN THE COURT OF APPEAL OF NEW ZEALAND

I TE KŌTI PĪRA O AOTEAROA

CA188/2020
[2020] NZCA 262

BETWEEN	DONNA MARY NEWLANDS Applicant
AND	NELSON CITY COUNCIL Respondent

Counsel:	Applicant in person K E Mitchell for Respondent
Judgment: (On the papers)	29 June 2020 at 10.00 am

JUDGMENT OF COLLINS J
(Review of Deputy Registrar’s decision)

AThe application for review of the Deputy Registrar’s decision is declined.
BSecurity for costs of $7060 is payable by 10 July 2020.

____________________________________________________________________

REASONS

Ms Newlands applied to dispense with security for costs in relation to an appeal she wishes to pursue. The Deputy Registrar declined Ms Newlands’ application. She now seeks to review that decision.

Background

Ms Newlands faces two charges under the Dog Control Act 1996 (the Act). Her dog, Baloo, is an American Pitbull Terrier. He is classified as a menacing dog and is required to be muzzled in public places.[1] On 17 December 2018, Ms Newlands took Baloo to Cable Bay beach near Nelson. He was not muzzled and attacked another dog, Jasmine, who subsequently died. Ms Newlands was charged under s 33EC(1) of the Act for failing to muzzle Baloo in a public place, and under s 57(2) for being the owner of a dog that attacked another domestic animal. The Nelson City Council (the Council) also seeks an order for Baloo’s destruction under s 57(3) of the Act.
[1]Dog Control Act 1996, ss 33C and 33E(1); and sch 4, pt 2.
Ms Newlands sought a pre-trial ruling on whether strict liability is imposed by s 57(2) of the Act. The District Court Judge declined to make a ruling, considering that it would be best addressed at trial. Ms Newlands applied for leave to appeal to the High Court on a question of law, namely whether her rights under the New Zealand Bill of Rights Act 1990 (NZBORA) had been breached by the District Court’s decision.[2] Cull J held that there was no jurisdiction for such an appeal as there had been no pre-trial ruling made by the District Court Judge.[3] Ms Newlands filed a claim in the High Court seeking orders under the Declaratory Judgments Act 1908 relating to liability under the Act. The Council successfully applied for the claim to be struck out.[4]
[2]Criminal Procedure Act 2011, s 296.
[3]Newlands v Nelson City Council [2019] NZHC 1692.
[4]Newlands v Nelson City Council [2020] NZHC 447.
Ms Newlands has appealed the strike-out decision to this Court. Security for costs was set at $7,060.
In declining Ms Newlands’ application to dispense with security for costs,[5] the Deputy Registrar said that there was insufficient information to support a finding that Ms Newlands is impecunious and that the costs outweighed the potential benefits of the appeal. The Deputy Registrar also concluded that the merits of the appeal are weak and there is no genuine public interest in the appeal as the relevant law is already settled.
[5]Court of Appeal (Civil) Rules 2005, r 35(6)(c).
Ms Newlands seeks…

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: [2020] NZCA 262
Decision Date: 29 June 2020 at 10.00 am

CaseChat Overview and Summary

Donna Mary Newlands has sought a review of the Deputy Registrar's decision to deny her application to dispense with security for costs in relation to an appeal against the strike-out of her claim by the High Court. The Nelson City Council is the respondent. Newlands faces charges under the Dog Control Act 1996 after her dog, an American Pitbull Terrier, attacked and killed another dog while not muzzled at Cable Bay beach near Nelson. Newlands has appealed the decision of the High Court to strike out her claim for a declaratory judgment as to her liability under the Dog Control Act. Security for costs was set at $7,060. In declining Newlands' application to dispense with security for costs, the Deputy Registrar found that there was insufficient information to support a finding that Newlands is impecunious and that the costs outweighed the potential benefits of the appeal. The Deputy Registrar also concluded that the merits of the appeal are weak and there is no genuine public interest in the appeal as the relevant law is already settled.

The Court must determine whether the Deputy Registrar was correct to decline Newlands' application to dispense with security for costs. The principles for determining whether security for costs should be dispensed with were set out by the Supreme Court in Reekie v Attorney-General. The Court identified two grounds upon which security for costs could be dispensed with: where costs are unlikely to be ordered against the appellant, or where the appellant cannot pay or will suffer severe hardship if payment is required. Impecu- niosity is not, in itself, sufficient grounds for dispensing with security for costs. The discretion to dispense with security for costs should be exercised so as to preserve access to this Court by an impecunious appellant who is bringing an appeal that a solvent appellant would reasonably wish to prosecute.

The Court found that Newlands had not provided any further information beyond her income to support a finding of impecuniosity. There was no reason to depart from the Deputy Registrar's decision on this point. Turning to the merits of the appeal, the Court found that there is little prospect of success. The costs of the appeal will likely outweigh any potential benefits and there is therefore no reason to dispense with security for costs. These conclusions render it unnecessary to consider the abuse of process arguments raised by the Council.

The application for review of the Deputy Registrar's decision is declined. Security for costs of $7060 is payable by 10 July 2020.

Orders